The Futility of a Gun Buyback

Gun bans are back in the news again, with the 2020 Democratic field lining up behind the (old, already-tried-and-failed) idea of a ban on the AR-15, the AK-47, and any other gun that looks remotely “military.” 

The most aggressive recent version of this proposal was floated by a certain Texan who’s currently sinking in the polls, and it includes a mandatory buyback. When asked if he plans to actually take away people’s guns, Beto O’Rourke replied: “I want to be really clear that that’s exactly what we are going to do. Americans who own AR-15s, AK-47s, will have to sell them to the government.”

Meghan McCain’s response to O’Rourke on The View—”if you’re talking about taking people’s guns from them, there’s going to be a lot of violence”—and Tucker Carlson’s subsequent pile-on (that it’ll spark a “new Civil War”) sent the usual suspects straight to the fainting couch, pearls in hand.

Media Matters has already put out two pieces on the remarks, one focused on Carlson and a breathless followup focused more generally on “right-wing media” reactions to the proposed gun ban. HuffPost reporter Zach Carter accused McCain of “mainstreaming apocalyptic thinking.” (One wonders what he thinks of HuffPost headlines like “Are We Heading Toward Extinction?“) Crooks & Liars amped everything up another notch by claiming Carlson’s rhetoric about the danger of gun confiscation is itself dangerous.

Before we go any further with the back-and-forth about armed resistance, let’s think about the reaction we can realistically expect to a watered-down AR-15 ban, with no mandatory buyback. How many gun owners would either hand over or destroy their assault weapons? And how many of the authorities whose job it would be to put refusers in jail would even try to enforce a ban?

We don’t have to look to New Zealand’s recent flop of a mandatory buyback, where less than 10 percent of the country’s estimated number of newly banned weapons have been handed over  so far, to answer those questions. There’s a great case study right here in the bluest of blue states: New York.

Gov. Andrew Cuomo hailed the 2013 New York SAFE Act as the toughest gun control law in the nation, and one of its most important provisions was the mandatory registration of all “assault weapons” in the state. This isn’t a confiscation or even a ban, so it’s nowhere near as severe as what O’Rourke and others are pushing—it’s just a teeny weeny little registration requirement.

So how has that worked out? Well, according to the National Shooting Sports Foundation’s conservative estimate, New Yorkers owned about 1 million “assault weapons” at the time the ban was passed. So the 44,000 that were actually registered are about 4 percent of the total. This noncompliance with the law is widespread and mostly open, but the police aren’t doing much about it. For instance, Hudson Valley One reported in 2016:

Upstate police agencies have also demonstrated a marked lack of enthusiasm for enforcing the ban on assault weapons and large-capacity magazines. According to statistics compiled by the state Department of Criminal Justice Services, there have been just 11 arrests for failure to register an otherwise-legal assault weapon since the SAFE Act took effect in March 2013 and 62 for possession of a large capacity magazine. In Ulster County, where 463 assault weapons have been registered, there have been just three arrests for possession of large-capacity magazines and none for failure to register an assault weapon. Ulster County Sheriff Paul VanBlarcum has been a vocal critic of the law; he said he believed large numbers of Ulster County gun owners had chosen to ignore the registration requirement.

I could give several more examples of such reporting. But the upshot is that gun owners are overwhelmingly ignoring the law—and the police are overwhelmingly looking the other way.

A 2017 article from NYU law professor James Jacobs sums up the state of play. After detailing the electoral damage the backlash against the act did to New York Dems—”In 2014, Governor Andrew Cuomo was reelected by a much diminished majority and Republicans regained control of the State Senate”—Jacobs concludes that the “SAFE Act’s impact on gun crime, suicides and accidents has never been seriously assessed, although both gun control proponents and gun rights advocates make extravagant claims. In truth, there seems little likelihood that the SAFE Act has had much, if any, effect since it has been only partially implemented, almost completely unenforced, and widely ignored. Its various provisions are easily circumvented” (emphasis mine).

New Yorkers are famous for their attitude, but this local police pushback on state and federal gun laws is not at all limited to New York. Nor is it a recent development. In 2013, for example, NBC reported on local sheriffs from Maryland to Colorado who publicly touted their refusal to enforce any gun laws they feel infringe on the Constitution. The growing Second Amendment Sanctuary movement, active in California, New Mexico, Oregon, and a handful of other states, is being led by local law enforcement.

If you’re one of my many pro–gun control friends, you’re no doubt offended at the spectacle of local police officials and city governments flat-out refusing to enforce democratically legislated marijuana laws…sorry, I mean immigration laws…oops, I mean gun laws.

I totally get that. When I read a quote like the following, there is indeed a part of me that thinks that if this radical insurrectionist loves cops and hates democracy this much, then maybe he should move to Hong Kong: “When [a prominent politician] kind of goes after these phantom sanctuary cities and talks about how bad they are, basically what he’s going after is police chiefs. And I trust police chiefs, in terms of knowing what should be done to keep their communities safer, and police departments and mayors, a lot more than I trust [that Washington politician].”

Oh, no—I got mixed up again. That was former Democratic vice presidential nominee Tim Kaine, in a 2016 CNN interview on the topic of immigration sanctuary cities, and the politician he was criticizing is Donald Trump.

My point, other than the fact that hypocrisy around federalism is depressingly bipartisan, is not that it’s either good or bad for local cops to veto laws. My point is that regardless of what you think of the gun owners who won’t comply or the cops who’ll inevitably let them off without even a verbal warning, there is no gun registration, gun ban, or gun confiscation that a U.S. Congress can pass and a U.S. president can sign that will be even close to fully complied with or enforced. Not one.

That isn’t a boast or a threat. It’s just a prediction, and a fairly safe one.

So the question I have for everyone who still wants to go down this road is this: What will you do in the face of the inevitable mass noncompliance? What is your Plan B?

Is the next step increased penalties for lawbreakers? If so, then how will you catch these lawbreakers in order to penalize them if the cops aren’t interested in going after them?

Is your plan to go after the police, then? Would you declare war on any local sheriffs and even state police who ignore the law? If this stood a realistic chance of happening, you’d think they’d do it in New York, of all places. But a lot of that state’s cops have been openly ignoring the country’s “toughest” gun law, and we’ve heard crickets.

Or maybe you plan to escalate to door-to-door confiscation as a last resort. 

In that case, I think Meghan McCain’s prediction of violence is about as safe as my prediction of mass noncompliance and law enforcement nullification. There would probably be a lot of ugliness and not a few dead bodies, not to mention a massive waste of the political capital of any party pushing the police into a shooting war with even a relatively small number of AR-15-owning bitter enders. 

Even if you think gun owners are bluffing and will hand ’em over peacefully when the time comes, you’d risk a violent escalation of America’s worsening culture war solely for the sake of outlawing a category of weapons that are involved in the low triple-digits of U.S. deaths in any given year? Really?

This doesn’t seem rational to me. It seems more like the kind of culture-war red meat you throw out there when you’re trying to revive a flagging presidential campaign.

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The New Trustbusters Are Coming for Big Tech

Jeff Bezos “is worried about me,” grinned Donald Trump back in 2016 while discussing Amazon’s bald-headed billionaire. “He thinks I would go after him for antitrust, because he’s got a huge antitrust problem because he’s controlling so much.” President Trump has continued to threaten Amazon and other tech giants with the trust-busting lash. This year, on CNBC, he informatively announced his role model: “The European Union is suing them all of the time. Well, we should be doing this. They’re our companies.”

You will not be surprised to hear that Fox News talker Tucker Carlson agrees with Trump. But you might blink when told that he arrived at this agreement via a lecture delivered by Professor Elizabeth Warren. The Massachusetts senator has gained traction in a crowded Democratic presidential field by announcing pre-election antitrust verdicts to bust up Amazon, Apple, Google, and Facebook—no legal proceedings required.

Carlson sprinkles conservative holy water upon Warren’s Plan for Economic Patriotism, saying her “policy prescriptions make obvious sense.” Warren would treat the rise of big tech firms like an exploding offshore oil rig: an emergency to be met by capping, closing, and hosing down the fiery mess. Carlson gushes that Warren “sounds like Trump at his best.”

This bipartisan pot of pols and pundits is echoing a school of thought known as the “new structuralism.” But you’re more likely to hear its nickname: “hipster antitrust.” It claims a historical hero in the late Supreme Court Justice Louis Brandeis, and its manifesto is Lina Khan’s 2017 Yale Law Journal article “Amazon’s Antitrust Paradox.”

The antitrust hipsters fear the “winner take all” rivalry in tech platforms while romanticizing the drowsy world of “common carrier” regulation. As seen in transport and communications, this regime has had its unfortunate place in history. While imposing so-called “nondiscrimination” rules on service providers under the auspices of giving everyone equal access, the regulations widely and deeply favor incumbents and legacy technologies at the expense of upstarts and innovation.

In the hipsters’ telling, regulation and antitrust are princes riding white horses to our salvation. The computer company IBM was an unrepentant oligopolist, they say, until it was put on the straight and narrow by a federal antitrust suit in 1969. That police action opened the market for Microsoft, which then started monopolizing the software business. Thankfully, the 1998 U.S. v. Microsoft suit busted that diabolical plot. If not for this victory for the Department of Justice Antitrust Division, Google would have been nipped in the bud. Alas, Google’s search function then got much too popular, and now it must be disciplined. Indeed, Amazon, Google, Facebook, and Apple have all grown too big for their britches. Each needs to be split up. They would already have been, in fact, had the cop on the beat not dozed off.

This pattern-recognition exercise is a reprise of Justice Brandeis’ early 20th century legal attacks on price-slashing innovators such as A&P, Safeway, Sears, Montgomery Ward, and J.C. Penney. Then, as now, each triggering offense was a daring market breakthrough that consumers flocked to embrace. Legislation procured by those who, like Brandeis, saw these commercial successes as threats did more to promote cartels than to promote competition: Oligopolies flourished under the auspices of the Interstate Commerce Commission (ICC), the Federal Communications Commission (FCC), the Civil Aeronautics Board (CAB), and the U.S. Department of Agriculture, with grim effects. Under the rule of the CAB, for example, air carrier competition was drastically reduced. In one of the “most bizarre and illuminating chapters in the history of regulation,” Harvard law professor Louis Jaffe wrote in the Harvard Law Review in 1954, only 30 percent of air traffic could be sold at coach fares—and that discounting existed only because “unscheduled” airlines brazenly evaded a government ban. “The CAB is completely committed to the existing certificated carriers,” Jaffe explained.

And while the ICC brought stability to railroads, it did so while creating higher average prices. The agency, which was established in 1887, was abolished in 1995 for undermining railroad and trucking efficiencies, wasting fuel, savaging the environment, killing economic growth, and waterboarding consumers. With less “public interest” and more open market rivalry, shipping costs were slashed, pollution declined, and innovation sprouted. A Brookings Institution study pegged efficiencies at $18 billion in 1996 alone, while crediting deregulation for allowing the emergence of new competitors in overnight shipping, including Federal Express.

Waves of deregulation produced protean results elsewhere, too. Legacy markets have been disrupted and powerful incumbents have fallen, with the choices available to consumers proliferating. The emergence of competitive wireless networks—granting 6 billion human beings access to global communications, 5 billion of them new phone subscribers—is itself a prime example of this liberalization. The antitrust hipsters present themselves as populists, but it is a curiously elitist form of populism that would undo the laws that allowed those mass market gains.

Antitrust was recently pushed to advance consumers’ welfare. That was part of the liberalization trend. Now it’s being tugged back to form a support system protecting “competitors”—guarding against low prices, escalating quality, and market rivalry.

Amazon Crime

For Khan, a legal scholar currently based at Columbia University, the problem with today’s market is epitomized by the operations of one firm. Amazon “generates meager profits,” electing to keep prices low while “choosing to expand at a speed and scale that is pushing it into the red,” she writes. It has risen to become the world’s second most valuable firm, worth about $1 trillion, because it is “at the center of e-commerce” and owns “essential infrastructure for a host of other businesses that depend upon it.”

That infrastructure—a platform spanning the planet—certainly is valuable. Amazon lists more than 400 million product pages from more than 300,000 independent vendors, creating the “long tail” of niche goods and services that shoppers adore. Recode reported in 2018 that “more than 100 million items in the U.S. are now eligible for two-day shipping.” Most of these are sold by companies other than Amazon, which not only hosts “rival” vendors but takes orders, ships products, and collects payments on their behalf. About half of these businesses generate over $100,000 a year.

For Khan, Amazon creates competition but also crushes competition. It is ensnared in a maze of conflicts, she says, and it routinely engages in predatory tactics—such as favoring its own listings—that steamroll pesky upstarts to protect Amazon’s ruthless march to world domination. Yet Amazon’s prices have been low for 25 years now. Khan doesn’t deny that. In fact, it’s what she complains about: The company’s offerings are too good for other sellers to compete with.

There is a germ of truth in Khan’s complaints about Amazon’s conflicts, but she fails to see the ubiquity of conflicts in economic rivalry—and in government regulation, which can worsen outcomes for consumers and the overall economy. Hence, she interprets vertical integration—Amazon supplying an online store and then stocking some of the shelves with its own products—in a naive and counterproductive way.

Every business acquires inputs and then sells outputs. In between, some magical process creates new value. Cooperative deals between suppliers and buyers today may well erupt in rivalrous tension tomorrow. That’s actually a good thing: We want to encourage shifting alliances. Customers change; technologies advance; firms learn; efficiencies evolve. Amazon hosting its retail rivals is no weirder than Costco displaying its own Kirkland champagne side-by-side with Veuve Clicquot or the Dodgers hosting the Giants in Dodger Stadium.

Antitrust scribblers may imagine Amazon squelching independent sellers and stealing their profits, but that’s not the reality according to the vendors. Hundreds of thousands of third-party sellers have made Amazon “the Everything Store.” From 1999 to 2018, Amazon’s own share of the products it sells dropped from 97 percent to 42 percent. And even that overstates Amazon’s vertical integration. Marketplace—the platform for third parties who offer goods through Amazon—now accounts for 68 percent of the platform’s retail revenues.

“More buyers transacting more often on Amazon will naturally attract third-party sellers,” eMarketer analyst Andrew Lipsman told TechCrunch last year. “But because third-party transactions are also more profitable, Amazon has every incentive to make the process as seamless as possible for those selling on the platform.” In May 2019, Business Insider headlined the news “3rd-party sellers are thriving on Amazon.”

In Khan’s telling, all the economic forces move in opposite fashion. She recommends a ban on mergers and more aggressive actions to limit or scale back the platform.

Take Amazon’s recent acquisition of Whole Foods for $13.7 billion. Khan blasted the combination in a June 2017 New York Times op-ed titled “Amazon Bites Off Even More Monopoly Power.” The fear was that a company with 0.8 percent of U.S. grocery sales (Amazon) gobbling up a competitor with 1.7 percent (Whole Foods) would leave American shoppers powerless to resist. Walmart’s 26 percent share of total grocery sales, not to mention Kroger’s 10 percent or Albertson’s 5 percent, would not constrain the beast. Neither would the fact that, in the year the merger went through, just 3.8 percent of U.S. groceries were sold online.

“Amazon’s purchase of Whole Foods will expand its dominance and heighten conflicts of interest,” Khan predicted. “By bundling services and integrating grocery stores into its logistics network, the company will be able to shut out or disfavor rival grocers and food delivery services.”

Her predictions have thus far proven wrong: Amazon’s rivals gained after the merger. “In the past year,” the Harvard Business Review reported in April 2019, “Walmart, Kroger, Costco, and Target have driven down costs and introduced delivery capabilities in new regions, cutting into Amazon’s market share.” They’re afraid of the online retail giant? Good.

The rivals’ fortunes may still change. Who knows? Not Khan, not the Justice Department, not Amazon. Absent demonstrable harm, letting things play out produces robust competition, oodles of innovation, and even new competitors, such as Instacart, launched in 2012 by a former Amazonian. That company boasts that it delivers alcoholic beverages to your home in as little as one hour. Which is, of course, not a moment too soon.

Khan ignores these dynamics. Or rather, she actively opposes them.

Conventional wisdom holds that U.S. corporations are painfully shortsighted. It’s said they scurry about with an eye to quarterly earnings while ignoring the broader horizon. It’s said that this undermines the risk-taking and R&D investments that are needed to unlock better worlds. But Khan launches her 96-page essay with this quote from The New York Times: “Even as Amazon became one of the largest retailers in the country, it never seemed interested in charging enough to make a profit. Customers celebrated and the competition languished.” She also quotes the biographer Ida Tarbell, who said that one of John D. Rockefeller’s “most impressive characteristics [was] patience.”

The Fable of the Diapers

Back in the day, Khan argues, antitrust policy would have stopped the clear and present danger of Amazon. But free market economists, mostly from the University of Chicago, have twisted the law to focus solely on “consumer welfare” as measured by “prices and outputs.” And so, she says, monopolies thrive. Things that look to be amazing new efficiencies, driven by economies of scale, are a trick: Predatory tactics displace competitors, steal markets, and dominate entire industries in the long run.

The paradigmatic illustration is Amazon’s acquisition nine years ago of Diapers.com. Yet a close look at her selected case study undercuts the lessons taught in Lina Khan’s academy.

In short: Marc Lore and Vinit Bharara launched the online retailer Quidsi in 2005. The startup sold baby products online, and its Diapers.com website gained a toehold. In November 2010, the pair sold their company to Amazon. Khan claims that Amazon actually squished them like a bug, using its massive data intelligence capabilities to crack their strategy. By figuring out how to reduce its own diaper prices, it drove Quidsi to the financial brink and then devoured it via merger in order to eliminate a retail rival. The upstart was vanquished, the monopolist got fatter, and all potential challengers were forewarned.

Khan’s story is sourced from Brad Stone’s 2013 book The Everything Store. Stone reports, but Khan does not, that the story of Amazon’s strategy is in dispute. This missing detail is one among many. But it turns out to be a harmless oversight, because Khan’s own facts, nested in the context of competitive innovation, are indisputably hostile to her theory.

First, there was no barrier to entry. Quidsi got into the business of selling Pampers and Huggies online, which Amazon could not prevent. The newcomer then pioneered innovative methods, particularly in shipping, using boxes that fit orders exactly so as to lower costs. This welcome progress stands in stark contrast to what happens under “public utility” regimes in which “licenses of convenience and necessity” are routinely denied to upstarts. Airlines, railroads, medical services, trucking, shipping, broadcasting, telecommunications, energy—in every one of these cases, commissions have erected artificial entry barriers deterring competition. Not a single new trunk airline was approved for launch by the Civil Aeronautics Board from 1938 to 1978. With unregulated diapers sold online, two guys from New Jersey formed a firm and walked right in.

Second, the Jersey boys did a better job of cleaning up the babies’ bottoms. Yes, Amazon sells competing products, and yes, it has bots that relentlessly monitor competitive offers. But by 2010, Diapers.com was outselling the ogre from Seattle by about four to one. When Lore and Bharara sold to Amazon, they received a payoff of $545 million, or about $400 million above invested capital. If Amazon is a predator trying to discourage entrants, it is going to need some powerful corporate messaging to overcome the language its cash is speaking.

Third, founder Marc Lore didn’t lose his entrepreneurial bent. In 2014, he founded Jet.com, an online retailer and direct rival to Amazon. In 2016, he sold that start-up for $3.3 billion to Walmart. Lore—a billionaire who bought a $43 million flat in one of New York City’s finest buildings in 2018—now heads the brick-and-mortar retailer’s eCommerce division. If this is what Amazon’s economic brutality looks like, quick—let’s crowdfund AdultDiapers.com and get pummeled.

Fourth, the gains for consumers were not just temporary. Khan says Amazon immediately ceased its price discounts on products sold by Diapers.com after absorbing the site. But hers is a vague and selective presentation; suffice it to say that the evidence would not be admissible in a court of law. I do not have a dataset as extensive as Amazon’s, but online prices for many brands over time can be found on Google. Huggies, Snuggles, Pampers, Luvs, and Seventh Generations were about 18 percent cheaper in online stores (free delivery with minimum purchase!) in 2019 than they were in mid-2010. Mommies and daddies clicked away—and won. No predatory exclusion, no monopoly, no price hikes to recoup the investment. Just good, clean, bottom-up consumer welfare.

Finally, Khan makes a major concession when she argues (uncompellingly) that prices rose after the Amazon-Quidsi merger. Throughout her critique of modern antitrust, she complains about the fact that the law focuses “primarily on price and output effects as metrics of competition.” But there’s a good reason for that, and courts ought to be encouraged to do more of it. These are the indices that impact customers and distinguish efficient rivalry from predatory conduct. Under the latter, prices fall, but only temporarily, and the price increases that come after wipe out the benefits for customers.

So Khan was right to consider Pampers prices as a metric of consumer impact. Alas, she makes no serious commitment to this approach. If she did, she would have to demand that regulatory measures advance their stated purpose and that they do not sabotage the constituency being offered protection. Attacking low prices with antitrust rules that retard innovation and freeze technologies does exactly that.

Even more problematic: As I witnessed up close while testifying as an economic expert retained by the winning side in a class-action suit against a firm found to have engaged in predation, judges can be lost when it comes to what remedies to administer.

“For much of its history,” write scholars Joshua Wright, Elyse Dorsey, Jonathan Klick, and Jan M. Rybnicek, “antitrust has done more harm than good.” Rulings that block pro-competitive conduct may “have resounding chilling effects…likely to discourage other firms from engaging in similarly beneficial conduct.” Leaving an overly dominant firm intact, on the other hand, often creates less social risk, because it generates its own offset: The profits earned by the miscreant announce opportunities for others.

Khan falls into this trap when she offers Quidsi as the quintessential upstart entrant but fails to mention its empirical reality. Or, for that matter, its inspiration: Amazon. Lore and Bharara idolized the online giant. They privately referred to Jeff Bezos as “sensei” and wanted to be him. And their decision to get into the game was funded by, among others, Accel Partners, a company flush with early-stage windfalls from Facebook. All these monopolies, so many startups.

Brandeis’ Folly

The antitrust hipsters’ lodestar, Louis Brandeis, championed local enterprises—”the small dealers and worthy men,” as his Supreme Court predecessor Rufus Peckham called them—that found themselves fighting the emerging national chains. To Brandeis, the big retailers’ low prices were a bug, not a feature. In 1915, the future justice amazed Rep. Alben Barkley (D–Ky.) by testifying that volume discounts were “fraught with very great evil” and should be banned. “Knowing the quantity discounts were as old as business itself,” wrote Thomas McCraw in his Pulitzer Prize–winning Prophets of Regulation (1984), Barkley “could not believe he had heard Brandeis correctly.” He had.

In this way of thinking, the efficiencies of the Industrial Revolution were a problem we needed government to counter. Brandeis condemned the consumer as “servile, self-indulgent, indolent, ignorant,” because she would blithely shop for lower prices and higher quality without concern for the social ramifications. It was an unambiguous loss, he believed, for A&P to displace the local grocer and for Sears, Roebuck and Co. to out-compete the town dry goods shop. Brandeis supported cartels to raise prices and protect inefficient producers. He rejected the interests of the “supine” customer, who “deserves to suffer” for patronizing vendors based on cost and convenience. As McCraw put it, Brandeis attacked consumer welfare as an objective because “consumers had betrayed him: They had refused to follow his precepts.” Instead, they were eagerly buying “the endless stream of goods that flowed” from the large, integrated businesses that “Brandeis so detested.”

Brandeis’ view nonetheless gained traction. In 1962, the Supreme Court blocked Brown Shoe (a company producing 4 percent of U.S. footwear) from merging with Kinney’s (a company retailing 1.2 percent). The antitrust enforcers then put the kibosh on Vons-Shopping Bag in 1966, saving America from a supermarket behemoth that would have dominated the Los Angeles retail grocery market by cornering—as the third-largest local seller—7.5 percent of sales. That, the high court said, indicated a “threatening trend toward concentration.” One wonders what the justices were drinking, but that may have been answered a few days later, when the Court upheld the Department of Justice’s move to stop a Pabst-Blatz merger as well.

Just to be clear: If the beer market were being monopolized, I would be the first to buy a case for the legal beagle filing suit. But here I’m not even opening a tab. As the Supreme Court explained: “In 1958, the year of the merger, Pabst was the tenth largest brewer in the Nation and Blatz ranked eighteenth. The merger would have made Pabst the Nation’s fifth largest brewer with 4.49% of the industry’s total sales. By 1961, three years after the merger, Pabst had increased its share of the beer market to 5.83% and had become the third-largest brewer in the country.” The Court ominously noted that their combined shares totaled 23.95 percent of the all-important Wisconsin beer market, raising the prospect of an “incipient” monopoly.

Justice William O. Douglas attached a 1966 Washington Post column, written by humorist Art Buchwald, as an appendix to his concurring opinion in the Pabst case. Buchwald’s piece considered a future (1978) merger case involving the last two companies in America—Samson, controlling all corporate assets west of the Mississippi, and Delilah, owning everything to the east. The essay had the Court finding no competitive issue. An excellent analogy for Pabst-Blatz: After those two companies assume control of all but 94.17 percent of U.S. beer production, what’s left?

Beware the Big Fix

Antitrust hipsters present the free market economists of the University of Chicago as their historical villains. Yet these scholars began their journey not far from Brandeis. The late Nobel laureate George Stigler started as a “bust ’em up” guy: In 1952 he wrote an article in Fortune stating the “case against Big Business” and calling for the dissolution of General Motors. But through observation and analysis, Stigler’s view progressed until he arrived at an antitrust policy that gave dynamic forces their due and put consumer interests at the center. He came to see government institutions as imperfect, and he posited in a 1971 paper the theory of “regulatory capture,” whereby “regulation is acquired by the industry and is designed and operated primarily for its benefit.”

Khan claims that ideological motives explain this “effort to idealize competitive markets and assume that nonintervention was almost always superior to interference.” Yet a deep and cutting critique of regulation preceded the new Chicago School approach. In 1952, Harvard’s Samuel P. Huntington wrote in the Yale Law Journal that the “attitude of the railroads towards the [Interstate Commerce] Commission since 1935 can only be described as one of satisfaction, approbation, and confidence.” Huntington called for abolishing the agency, saying it had lost “its objectivity and impartiality by becoming dependent upon the support of a single, narrow interest group”: the railroads.

Jaffe, writing in that 1954 Harvard Law Review article, similarly acknowledged that most regulators had underperformed. Drawing on the extensive writings of former Harvard Law School Dean James Landis, Jaffe noted that administrative supervision of industry was the dream of the Progressive Era and then of the New Deal. But the “planning thesis took almost no account of the character and psychology of our administrators” and “gave too little weight to the dynamism of the industrial system.”

Cleaning up the regulatory mess fell, in part, to a Cornell economist: the late Alfred Kahn, an earnest New Dealer for all of his days. Appointed by President Jimmy Carter to head the Civil Aeronautics Board in 1977, Kahn intended to reform the agency. But he found that greater price competition, not to mention service innovation, could not be realized within the model he inherited. Kahn discovered deregulation not by imbibing Chicago School Kool-Aid but through fealty to the public’s actual interests. It was because he took his fiduciary obligations seriously that he sought to overturn the “common carrier” approach of the 1938 Air Carriers Act, ultimately ending the agency via bipartisan congressional reform.

Kahn’s early scholarly work channeled Thorsten Veblen, who was as critical of consumers’ choices as Brandeis was. Yet Kahn studied on. He came to see “that society’s choices are always between or among imperfect systems” but that markets generated a dynamism, giving them an edge: “Wherever it seems likely to be effective, even very imperfect competition is preferable to regulation.” Paring back controls over air routes and fares has resulted in consumer gains conservatively estimated by the Brookings Institution at $10 billion annually.

No, air travel is not perfect. Yes, I’ve flown United. But it’s all relative. The Civil Aeronautics Board was a comparative disaster for efficiency, innovation, and customers—particularly the low- and middle-income Americans, then earthbound, who now dot the sky.

Policy makers gave the “common carrier” theory of regulation a marathon test drive following the 1934 Communications Act. The FCC, under its “public interest, convenience, or necessity” standard, enhanced Ma Bell’s market power. That was, literally and practically, “network neutrality”—the same philosophy endorsed by Lina Khan as a promising pathway for regulating tech giants today.

How did it work out? In 1974, the U.S. Justice Department filed a massive antitrust suit against the company. Settled in 1982, it dissolved the giant into seven “Baby Bells” and an independent AT&T Long Lines.

The reason for the lawsuit was that AT&T, a “common carrier,” was preventing competition by using antidiscrimination rules enforced by the Federal Communications Commission. “The FCC was trying to block MCI from competing in ordinary long-distance services when the AT&T case was filed by the Department of Justice in 1974,” explained Robert Crandall and Cliff Winston of the Brookings Institution in a 2003 Journal of Economic Perspectives article. “Thus, antitrust policy did not triumph in this case over restrictive practices by a monopolist to block competition, but instead it overcame anticompetitive policies by a federal regulatory agency.”

There is no secret formula that produces enormous gains from blockbuster innovation without the disruption of old markets and obsolete business models. The “Great Enrichment” that economist Deirdre McCloskey describes—an approximately 30-fold increase in capitalist country incomes between 1800 and 2000, which upended the economic flatline of history—was and is a rough-and-tumble process. That’s why Joseph Schumpeter dubbed it “creative destruction.”

There are good reasons to be wary of large organizations of any stripe, including giant tech platforms. But far more dangerous—to consumers, workers, and the economy as a whole—are hipster antitrust promises of a magical fix.

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Brickbat: A Call for Help

Federal prosecutors have charged Robert Morris Levy—a pathologist at the Veterans Affairs clinic in Fayetteville, Ark.—with three counts of involuntary manslaughter in connection with the deaths of veterans whose diagnoses he got wrong. The VA says he improperly diagnosed at least 15 patients who later died and at least 15 others whose health was seriously harmed. In total, they say they have been able to document 3,000 errors or misdiagnoses made by Levy over 12 years at the clinic. Court records and other documents show Levy repeatedly showed up for work under the influence of alcohol. On one occasion, a test showed his blood alcohol level at 0.4. He was repeatedly suspended but allowed to come back each time. He was fired only after being arrested for DUI.

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How Will the Hong Kong Protests End?

The mass protests in Hong Kong have been the most thrilling news of 2019: a daring, dramatic movement involving people asserting their fervent support for liberty, democracy, and the rule of law.

On some weekends, a quarter of the territory’s 7.4 million people have thronged the streets to demand reform from the Beijing government, which had tried to force through a new law allowing extradition to the mainland. They persisted, sometimes violently, even as police resorted to tear gas, rubber bullets, and arrests.

On Wednesday, they got a major concession from Chief Executive Carrie Lam, who finally agreed to kill the bill. Her hope is that it will douse the discontent. But as is often the case in such crises, it may serve as an accelerant.

Pro-democracy legislator Claudia Mo said Lam’s decision was “too little, too late.” Adjunct professor Willy Lam of the Chinese University of Hong Kong, told The New York Times it would “not have any impact.” But Regina Ip, a pro-Beijing member of the Executive Council warned, “There are no more concessions we can make.”

The protesters’ demands have long since expanded to include amnesty for the demonstrators, an investigation into police brutality, and democratic reforms. Underlying the movement is a desire to preserve Hong Kong’s broad freedom from the tight control the Beijing regime exerts over the rest of China.

When the British colony was returned to Chinese rule in 1997, it was assured substantial autonomy until 2047. But when an overreaching central government put a cloud over its special status, Hong Kongers took to the streets.

That spectacle has inspired admiration and awe. But to anyone who has watched events in China and the world in recent years, the central emotion has to be dread.

The protests represent a direct challenge to the sovereignty and power of the ruling Communist Party. It’s a challenge the central government is not likely to endure for long. After Oct. 1, when the party commemorates the 70th anniversary of the founding of the People’s Republic, it may be less reluctant to crack down.

For China’s rulers, the movement brings flashbacks of 1989, when students calling for democracy occupied Tiananmen Square in Beijing. That demonstration arose amid a worldwide surge that brought democracy to places ranging from South Korea to the Soviet Union to Chile. It was natural to expect that China would also make the transition.

It didn’t. The government instead chose to crush the opposition with armed troops who killed hundreds if not thousands. The Communist Party held on, and international outrage eventually dissipated. China proceeded to become an economic powerhouse.

It’s hard to imagine President Xi Jinping tolerating unending turmoil or accepting the other demands. He is bound to see the unrest as a mortal danger to both China’s system of government and its territorial sovereignty.

Letting the protesters win would weaken Beijing’s control over its people by signaling that determined, mobilized citizens could defeat the government. Xi did not achieve the most powerful position in China in order to dismantle the system that put him there.

Backing down in Hong Kong would violate what the rulers learned from Soviet leader Mikhail Gorbachev, whose liberalization led to the demise of his government. It would also contradict the lesson they took from the Arab Spring: With sufficient brutality, autocratic regimes can put an end to popular uprisings.

A retreat would also embolden advocates of independence in Hong Kong—and, even more alarming to Beijing, fuel separatist sentiment in Taiwan. Granting demands for autonomy would call into doubt Beijing’s professed commitment to prevent Taiwan from declaring its independence at all costs. The Chinese leaders and people are stalwart in their belief that Hong Kong is theirs—a claim accepted by the rest of the world.

China’s rulers obviously hope that withdrawing the extradition measure will soon bring an end to the turbulence. But there is no reason to doubt that if Beijing needs to use overwhelming force, it will do so—and ignore the condemnations from abroad.

The brave idealism of the people of Hong Kong is enough to stir the heart of anyone who cherishes freedom. But the harsh reality is that they are unlikely to get more of what they demand. The movement could end because they accept this modest victory and go back to their normal lives. Or it could end in tears and blood.

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Trump’s Tariffs Fail Again

In his book The Art of the Deal, President Donald Trump described his communication style as “truthful hyperbole.” Hyperbole, sure. Truthful, questionable. Take Trump’s recent speech in Pennsylvania where he declared that his tariffs had turned things around for the domestic steel industry. He also claimed the unratified United States-Mexico-Canada Agreement—USMCA or the new NAFTA—and his steep Chinese tariffs would also bring jobs back to the United States. Are the Trump trade policies bringing about a manufacturing revival?

Over the course of the last year and a half, the administration has imposed tariffs on metals, along with many other intermediate and final goods. Part of the USMCA would require that more auto parts be made in the United States and more compensation be subjected to higher minimum wages in order to benefit from the zero tariff rate between Mexico, the United States, and Canada. When faced with a steep penalty for buying foreign goods, the belief is that consumers and both foreign and domestic companies producing goods in the United States will have no choice but to buy everything they need here at home.

That’s unlikely. There’s a reason why businesses set up their supply chains globally instead of domestically. It allows them to get the highest quality parts for the lowest prices. When production becomes more expensive in the United States, businesses raise their prices and are less competitive.

Consider the automobile industry. When and if the USMCA becomes the law of the land, automakers will face higher costs. That’s on top of the metal price hikes thanks to Trump’s tariffs. Some auto producers might change their supply chains to conform to the new trade deal, but others might decide instead to pay the current 2.5 percent tariffs on imported parts. Either option raises production costs as well as prices in showrooms. And fewer automobiles are produced in the United States.

As in many other industries, the auto industry’s future is in exporting. Raising U.S. auto-production costs makes it more difficult for companies producing cars here to export them to countries where consumers can choose not to buy Trump-induced expensive cars. This reduction in the U.S. automobile industry’s competitiveness may force some domestic and foreign companies to increase offshoring certain sectors of the auto industry, likely to Asia. Over time, the U.S. auto sector will shrink.

Admittedly, this offshoring may take a while if the U.S. economy is still strong, especially compared to the rest of the world. Partial credit for this strength goes to the Trump administration, which passed tax reform including a cut in the corporate tax rate from 35 percent to 21 percent. That triggered an increase in capital investment and a hike in wages. However, this effect is winding down. The tax cut also prompted a few U.S. companies to move their corporate address back to the United States, but that didn’t create new jobs.

While the Trump administration is always happy to brag about anecdotal cases of companies relocating to the United States, the actual overall numbers tell a different story. For instance, Toyota recently announced a large U.S. investment, though the rate of foreign investment here—including investment from Japan—has slowed under Trump. Constant uncertainty about the trade war, new Chinese tariffs, the threat of additional auto tariffs and the global slowdown played a prominent role in this decline.

Chinese tariffs have also failed to bring back jobs. The data show that in most cases, when firms move out of China, they aren’t relocating to the United States, but to Southeast Asia. Even the U.S. Commerce Department acknowledges that tariffs are a “challenge” for companies wanting to move production to the United States.

More troublesome for Trump is the fact that the manufacturing sector is showing signs of a slowdown. The latest U.S. jobs report showed manufacturing employment rose by “an average of 8,000 jobs per month so far in 2019,” compared to an increase of 22,000 jobs per month in the sector during 2018. A recent survey shows manufacturing contracting in August. Even the heavily protected steel and aluminum sectors have started to see a decline in jobs this year.

So while Trump’s hyperbolic communication style may be entertaining, it certainly shouldn’t be taken as factual.

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Amicus brief on lawsuits against gun manufacturers invokes NY Times v. Sullivan

Should gun manufacturers be liable for misuse of guns? Should printing press manufacturers be liable for misuse of presses? The answer to both questions is “no,” according to an amicus brief I filed today in support of a Supreme Court cert. petition. Amici include the Cato Institute, the Firearms Policy Coalition, several other civil rights organizations, and professors with expertise in the First and Second Amendments–including the VC’s Eugene Volokh and Randy Barnett.

The case is Remington v. Soto, an appeal from a 4-3 decision of the Connecticut Supreme Court. The 2005 federal Protection of Lawful Commerce in Arms Act (PLCAA) prohibits most lawsuits against firearms businesses. The protection does not apply to guns that are actually defective (e.g., a gun that accidentally fires even when the trigger is not pressed). Nor does PLCAA forbid suits where a firearms or ammunition manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm.” 15 U.S.C. § 7903(5)(A)(iii).

As the amicus brief details, PLCAA was enacted because a coordinated group of local government officials, aided and abetted by HUD Secretary Andrew Cuomo, had filed lawsuits against handgun manufacturers and firearms trade association intended to bankrupt them from litigation costs. Although the defendants had complied with all of the many laws about the manufacture and sale of guns (and the trade associations did not even make or sell guns), the government sought to impose liability based on on broad and nebulous tort theories, such as unfair trade practices, public nuisance, and so on.

After PLCAA became law, plaintiffs continued to bring suits based on the same theories, and alleged that the suits were allowed by the statutory exception for defendants who “knowingly violated a State or Federal statute applicable to the sale or marketing” of firearms or ammunition.

These suits were consistently rejected by the courts, which recognized that plaintiffs’ theory of the PLCAA exception would negate the rest of the statute. However, earlier this year a divided Connecticut Supreme Court held that Remington’s advertising for the Bushmaster AR-15 was a violation of Connecticut’s unfair trade practices statute. Therefore, Remington could be held liable for the 2012 murders at Sandy Hook Elementary School, in which the criminal used an AR-15 rifle that he stole from his mother after he murdered her.

As Remington’s cert. petition points out, the 4-3 Connecticut decision is contrary to the text and legislative history of PLCAA, and contrary to PLCAA cases around the nation. An amicus brief from several state Attorneys General describes the harm that the Connecticut decision does to PLCAA’s policy of cooperative federalism. The statutory interpretation arguments are elaborated in a brief by 22 members of the House of Representatives. Gun Owners of America concentrates on canons of statutory construction. The National Rifle Association and the Connecticut Citizens Defense League point out that allowing the Connecticut decision to stand will nullify PLCAA and lead to the destruction of the firearms industry. The National Shooting Sports Foundation–one of the trade associations that was targeted in the abusive lawsuits–addresses the doctrine of constitutional avoidance: if a statute can be interpreted in two ways, and one interpretation would raise serious constitutional problems, then the other interpretation should be preferred.

My brief provides a different perspective, examining PLCAA in the broader context of abusive lawsuits against the exercise of constitutional rights–in particular, the abusive libel suits that led to the Supreme Courts’s 1964 decision New York Times v. Sullivan.

As the brief explains, before and during the Civil Rights movement, abusive tort actions were used to silence newspapers that exposed abuses in the Jim Crow South. Civil rights
opponents retaliated against such papers through libel suits, even if the article was factually correct. The black press in the South had been targeted for decades and could not afford the costs of litigation. When the national media began significant coverage of civil rights in the South, it too was targeted. Weaponized suits deterred and punished out-of-staters from reporting on Alabama. Eventually, the Supreme Court had to quell the lawsuit abuse, starting with Sullivan, and with follow-up decisions for several years.

Just as abusive civil suits threatened the First Amendment before Sullivan, abusive civil suits began threatening the Second Amendment in the 1980s. Frustrated by insufficient progress in legislatures, gun control advocates brought many product liability suits
against firearm manufacturers and retailers. Although the plaintiffs won only one case, they succeeded in imposing heavy legal costs on the firearms industry.

In the 1990s, dozens of local governments coordinated new lawsuits with the express intention of destroying the firearms industry through litigation costs. Additionally, Secretary of Housing and Urban Development Cuomo organized federally funded housing
authorities to bring more suits. Several firearm manufacturers went bankrupt, and others were driven to the brink.

Finally, just as the Supreme Court halted the abusive lawsuits against the press in Sullivan, Congress enacted the Protection of Lawful Commerce in Arms Act to end
the abusive lawsuits against the firearms industry. Suits based on unfair trade practices and other amorphous theories were among those that Congress expressly intended to forbid.

In the instant case, the Connecticut majority held that Remington’s “militaristic marketing” was an illegal unfair trade practice. The holding strikes at the First Amendment as well as the Second. The notion that it is illegal for firearms advertisers to use “militaristic” themes is absurd. The exercise of the right to keep and bear arms
has always had a relationship to military use of arms. For example, the first clause of the Second Amendment is about “a well regulated militia.” Colonial assemblies, early state legislatures, and Congress in 1792 mandated that American citizens possess firearms and edged weapons. The federal and state arms mandates were not enacted by legislatures insistent that everyone go duckhunting. They were enacted so that the population
would have combat weapons. If guns were not useful for interpersonal fighting, they would not be “arms,” and would not be protected by the Second Amendment.

The wisdom of the American approach to widespread citizen possession of arms was vindicated in World War II, when Hawaii and Maryland relied on volunteer citizens, bringing their own arms, for defense against enemy invaders or saboteurs. Many of the most iconic firearms for American citizens got their start as military arms; these include Colt revolvers, the 16-shot Henry rifle of 1861, and the .30-06 bolt-action rifle (today, a hunting favorite, and in 1906, the U.S. Army service rifle).

Starting in 1903 with congressional creation of the Civilian Marksmanship Program and the National Board for the Promotion of Rifle Practice, the policy of the federal government has been to encourage and subsidize civilian proficiency with arms, particularly, military surplus. By the Connecticut Supreme Court’s theory, Congress itself was guilty of an unfair trade practice for using “militaristic” language to encourage citizens to arm themselves.

When the Supreme Court saw the problem of abusive lawsuits against the freedom of the press, the Court “revolutionized the American law of libel . . . in one sudden burst of federal judicial power.” (Rodney Smolla, Suing the Press 27 (1986)). The Remington case and its scores of predecessors are an even more egregious abuse of constitutional rights. New York Times v. Sullivan grew out of a 1960 advertisement in the Times that included some false statements about the actions of the Montgomery, Alabama, government, of which L.B. Sullivan was a commissioner. Mr. Sullivan sued the Times, which had published the false statements, but he didn’t sue the manufacturer of the printing presses that the Times had used to print the papers.

Suing gun manfacturers for third-party misuse is no more legitimate that suing printing presses for third-party misuse. The suit is all the more abusive in the Remington case, where there is no evidence that the reclusive, deranged criminal who stole the gun from its lawful purchaser had ever seen a Remington advertisement.

Constitutionally speaking, press manufacturers and arms manufacturers are equivalent. To “the Framing generation, the connection” between presses and arms was “commonsensical. The right to bear arms and the freedom of the press presented the exact same type of question for the Framers: can there ever be a natural right to a
man-made device? In the case of arms and presses, the Framers believed so.” Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies, 17 Wm. & Mary Bill of Rights J. 1037, 1049–50 (2009).

“It is not hard to imagine why the Framers singled out only these two technologies for constitutional protection. Madison and his contemporaries spoke about the two rights in the same breath, and often in similar ways describing them separately as private rights, the ‘palladium of liberty,’ and necessary or essential to a ‘free state.'” Id. at 1070. This is one reason why the First and Second Amendments were placed next to each other. Both safeguard natural rights—at least according to the Founders.

Imposing tort liability for third-party misuse would eliminate press manufacturers and arms manufacturers. It has always been known that presses and arms are sometimes misused. “As Madison said, ‘Some degree of abuse is inseparable from the proper use of
every thing.'” Sullivan, 376 U.S. at 271 (citing 4 Elliot’s Debates on the Federal Constitution 571 (1876)).

While the New York Times petitioners asked for a revolution in tort law to protect the First Amendment, the Remington petitioners are asking only for a faithful interpretation of a federal statute. In both cases, the stakes are the same: whether the Supreme Court will allow the misuse of tort suits to destroy an enumerated right.

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“The Europeans ‘Fabricated’ Stories About Ancient Egyptian, Greek, and Roman Civilizations—All Based on Chinese History”

From the Taiwan News (Zin Kao):

“World Civilization Research Association” scholars are claiming that Western civilization originates from China and all European languages are merely Mandarin dialects, the Liberty Times reports….

The World Civilization Research Association group of scholars are professors from a number of Chinese academic institutions. Association member Zhu Xuanshi further … said Europeans “felt ashamed” due to the “fact” there was no history in Europe before the 15th century, compared to China. In an attempt to paper over this historical humiliation, the Europeans “fabricated” stories about ancient Egyptian, Greek, and Roman civilizations—all based on Chinese history…. “Do not let fake, Western-centered history hinder the great Sino-Renaissance,” [World Civilization Research Association founder Du Gangjian] was quoted as saying.

Many Chinese citizens were unconvinced, however …. “Thanks, we can no longer laugh at the Koreans who claimed Confucius and Genghis Khan are Korean,” one commenter sardonically lamented.

This reminds me, of course, that Russia is the homeland of the elephant. Thanks to Prof. Mark Liberman (Language Log) for the pointer.

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Hong Kong Dissidents Win One Demand—Now There’s Four More to Go

Earlier today, Hong Kong’s Chief Executive Carrie Lam withdrew the controversial extradition bill that set off protests 13 weeks ago.

The bill would have allowed Hong Kong to extradite suspected criminals to both Taiwan and mainland China. Since 1997, Hong Kong has technically been considered part of China, but was granted significant autonomy through the “one country, two systems” policy, which allows Hongkongers to enjoy basic democratic freedoms. The extradition bill, which was tabled several months ago but not formally withdrawn until now, would have winnowed away at Hong Kong’s autonomy.

Though full withdrawal of the extradition bill is a genuine concession, Lam’s decision fulfilled only one of the protesters’ demands and many pro-democracy dissidents warn that this is not a full victory, but partial appeasement.

The protesters still want the Hong Kong government to address the increasing use of force by police and the lack of free and fair elections. They also want Hong Kong to release people who have been arrested in connection with the protests, and for Lam, who the protesters see as a puppet of Beijing, to step down.

The protesters’ additional demands—notably the calls for fully free and democratic elections—were at the core of the 2014 “umbrella movement” protests. Yet Lam is still in charge and candidates for chief executive are still pre-screened and approved by mainland China.

The conflict over mainland China’s influence on Hong Kong will pop up again in the future, particularly since Hong Kong’s semi-autonomy rests on a 50-year-long treaty that expires in 2047.

“Incidents over these past two months have shocked and saddened Hong Kong people,”  Lam said in a broadcast. “We are all very anxious about Hong Kong, our home. We all hope to find a way out of the current impasse and unsettling times.”

More Reason coverage of the Hong Kong protests here.

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Defending ‘Reasoned Debate About Public Safety,’ San Francisco Supervisors Declare the NRA a ‘Domestic Terrorist Organization’

Yesterday the San Francisco Board of Supervisors unanimously declared that the National Rifle Association is a “domestic terrorist organization,” because words no longer have any meaning. Try to follow the reasoning of Resolution 190841:

WHEREAS, The United States Department of Justice defines terrorist activity, in part, as, “The use of any…explosive, firearm, or other weapon or dangerous device, with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property;” and

WHEREAS, The United States Department of Justice further includes any individual or member of an organization commits an act that the actor knows, or reasonably should know, affords material support, including communications, funds, weapons, or training to any individual has committed or plans to commit a terrorist act, and

WHEREAS, The National Rifle Association musters its considerable wealth and
organizational strength to promote gun ownership and incite gun owners to acts of violence, and

WHEREAS, The National Rifle Association spreads propaganda that misinforms and aims to deceive the public about the dangers of gun violence, and

WHEREAS, The leadership of National Rifle Association promotes extremist positions, in defiance of the views of a majority of its membership and the public, and undermine the general welfare, and

WHEREAS, The National Rifle Association through its advocacy has armed those
individuals who would and have committed acts of terrorism; and

WHEREAS, All countries have violent and hateful people, but only in America do we give them ready access to assault weapons and large-capacity magazines thanks, in large part, to the National Rifle Association’s influence; now, therefore, be it

RESOLVED, That the City and County of San Francisco intends to declare the National Rifle Association a domestic terrorist organization…

The resolution does not mention any evidence that the NRA “incite[s] gun owners to acts of violence,” but this quote from Supervisor Catherine Stefani, who introduced the resolution, gives you an idea of what she and her colleagues may have had in mind: “When they use phrases like, ‘I’ll give you my gun when you pry it from my cold, dead hands’ on bumper stickers, they are saying reasoned debate about public safety should be met with violence.”

That is not what they are saying. Even on a literal level, the slogan means that the person affixing it to his bumper is ready to forcibly resist any forcible attempt to deprive him of his fundamental right to armed self-defense. More realistically, it is a hyperbolic way of saying the Second Amendment is really important to that person. It does not mean he is ready to shoot Catherine Stefani for advocating gun control. Nor should Stefani interpret the Gadsden Flag as a threat to sic rattlesnakes on her, or New Hampshire’s state motto as an incitement to violent revolution.

Stefani, of course, is not threatening her political opponents with violence; she is too civilized for that. Instead, she is arguing that anyone who disagrees with her about gun control should be treated as a pariah and a murderous criminal, on par with members of the Ku Klux Klan. That position is required by her belief in “reasoned debate about public safety.”

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Should Amazon (and Google, and Facebook) Be Canceled by Antitrust Law?

What a difference a decade makes! Ten years ago, everyone loved big tech companies such as Amazon, Facebook, Google, and Twitter. They were bringing low, low prices and vast selection to consumers, allowing us to connect and build community in new and powerful ways, and helping the least-powerful among us speak up against power and even start revolutions.

Nowadays, those same corporations are favorite targets of politicians all across the political spectrum. Congress demands their executives testify before the House and Senate, President Donald Trump rarely goes a day without inveighing against tech giants for allegedly screwing with his popularity and reelection chances, and Democratic presidential candidates like Elizabeth Warren have promised to break up companies they say have too much cultural, economic, and political power.

Lurking behind the new attacks on big tech is a novel interpretation of antitrust law known as “hipster antitrust” because it’s being touted by a new, younger generation of legal scholars. Law professors such as Lina Khan and Tim Wu are inspired by Louis Brandeis (1856-1941), the Harvard Law professor and Supreme Court justice who warned against “the curse of bigness” and defended small, local firms against national behemoths like Standard Oil and A&P.

In the cover story for the October 2019 issue of Reason, Clemson economist Thomas W. Hazlett delves into the ideas and analysis of hipster antitrust and the new push to break up the tech giants. He says that the hipster antitrusters, Warren, and Trump have got it almost all exactly wrong and that companies such as Amazon actually are massively benefiting consumers. On today’s Reason podcast, Hazlett tells Nick Gillespie about the checkered history of past antitrust actions and what proponents of hipster antitrust get wrong about today’s (and tomorrow’s) tech sector. Hazlett’s story is currently available only to subscribers of Reason magazine. Subscribe now for as little as $14.97 and then read the story here.

Audio production by Ian Keyser.

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