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Tonight’s Kennedy (Fox Business Network at 8 p.m. ET, with a repeat at midnight) is a soberer-than-usual affair, with an appropriately serious look at policy responses to the Orlando Pulse massacre. I’m on there for three segments, along with Democratic political consultant Julie Roginsky and libertarian comedian Dave Smith, sorting through the competing statist responses by presidential front-runners Hillary Clinton and Donald Trump.

I appeared on Kennedy’s show a week ago as well. A clip from that:

The Orlando Pulse nightclub mass murder understandably has inspired calls for legal solutions to prevent such things in the futre. It touches on the core reason people think we need government: to protect our lives from violence.

Omar Mateen’s evil assault, evidently motivated by some combination of dedication to radical Islam as represented by ISIS and an animus toward homosexuals, for which he used guns including a Sig Sauer MCX rifle condemned by many as an “assault rifle” unsuited for any legitimate civilian use, touches on three different areas where many Americans desire more legal pressure or attention: the presence of Islamic radicals in our nation, the “hate speech” thought to possibly motivate such violence, and the ability to obtain the weapon used. (It’s a grim trifecta that likely pushed some “the government must do something” button in nearly all non-libertarians.)

So how can people be so obtuse and/or heartless as to believe that people’s freedom of movement (for those who conflate the citizen Mateen with non-citizen Muslims who might like to come here) or freedom from surveillance or arbitrary detainment, or freedom to think and express hateful things, or freedom to peacefully own objects that exist in the world, should trump government’s ability to stop tragedies like Mateen’s shooting?

There are a few reasons. If you don’t have even a hint of a core belief that, for the most part and in most circumstances, people should be free to be, act, think, speak, and own what they want, as long as they are not or have not actually harmed someone’s life or justly owned property, you may find these reasons unconvincing. You might even consider such people not enthusiastic supporters of “doing something” with force of law in the face of nightmares like Orlando to be villains.

If you believe no benefits exist on the other side of questions of surveillance, censorship, or weapon ownership, then the fact that in most actual circumstances, certainly including this one, no amount of conceivably acceptable government action would have stopped this from happening is meaningless; all costs spent toward the goal of stopping murders, no matter how unlikely to accomplish anything, are then acceptable.

Should government keep a closer eye on people in America who seem to evince some sympathy for or connections to radical Islam? People who knew Mateen did feel they saw something, and they did say something. And the FBI investigated.

We have no reason to believe their investigation was incompetent in terms of not uncovering things that were uncoverable, unless we believe they should either be seers or be so suspicious of all Muslims that they should have initiated some sort of 24 hour tail on Mateen. They looked into him, discovered he had committed no crimes, and eventually took his name off a terror watch list. (And had they kept him on it, that too would have had no bearing on their ability to prevent him from committing this crime.) 

Are advocates of increased surveillance of suspected terrorist sympathizers imagining preventive detention of the suspicious as necessary and proper? Do they believe if cops listened in on every phone call and read every email in real time, that the plans to murder would be discussed out loud in plenty of time to swoop in and stop them?

The use of government manpower to investigate people who said the wrong things or had the wrong associates in the field of terror in the vastly overwhelming majority of cases are merely harassing people who have committed no crime and don’t realistically plan to do so. And even when such surveillance or investigations are not harassing the innocent, or not ginning up attempted crimes that would not have even happened without the FBI’s encouragement, the Mateen case shows that using such techniques to prevent future crime rather than investigate and punish past crime is not apt to accomplish much either.

Treating a huge sector of American society for reasons of ethnicity or religion or ideology or associates as inherently worthy of deep, extended investigatory attention from government has, understandably, a bad reputation in American history, even when the ideology under investigation is genuinely ugly. And as this week shows, such surveillance or investigations don’t hold much promise to actually accomplish much in the way of public safety for the costs to the dignity and privacy and right-to-be-left alone of those targeted.

For those who think that hateful attitudes or expression toward others (even when they fall short of violence) need to be extirpated or punished, well, that is certainly a more and more popular attitude in the West. I imagine it makes perfect sense to those who reacted to the last sentence of 1984 with anything other than a chill of horror, or those who have a hard time seeing any principle or value behind freedom of conscience or freedom of expression, those cores of Western liberty, other than “it is only good to say and think good things.” There are costs to giving power over conscience and expression to government, and they won’t only be used where you think they ought to be used.

As for guns, you may believe in the Second Amendment, sort of, or not believe in disarming all American in all circumstances but just think when it comes to certain kinds of guns you want to call “assault rifles” or certain size magazines that there’s no good reason to allow them to stay in circulation.

Almost universally, those kinds of guns or magazines of a certain size are not used to harm anyone. But they clearly can be, and those who want them gone can’t think of any good reason some one would want one, certainly not a reason good enough to justify even the slightest chance it can be used to harm someone. (It might be worth considering the specific types of weapons or magazines usually targeted by these “reasonable” gun control recommendations aren’t necessarily any more deadly than other kinds.)

One can even grant two suppositions—that the innocent should be robbed of the use of some existing tool because the evil may misuse it if you aren’t satisfied with their reasons for wanting it, or even that it would be a better world if no one had those kind of weapons and those sized magazines—and still doubt trying to pass and enforce such laws is worth it. 

America already has had a couple of wide-scale experiments, with alcohol and drugs, in banning or forbidding something that already exists here in America in vast profusion, and/or is relatively easy to smuggle in. Booze, drugs, guns, magazines, all things that in some cases can facilitate or further or help cause harm to others; and that in the vast majority of cases are used for private pleasure and fulfillment of a sort an outsider might scoff at but whose pursuit can be seen as core to liberty writ large: the ability to choose how to shape your life and leisure, as long as you are not actually harming someone else’s life or property.

So we already know here in America that there are enormous costs associated with such attempts to police the nation and find and confiscate and punish people over existing items that people want and that they almost never harm others with. Such costs especially in the harassment and punishment of the actually innocent (that is, those who might be violating the prohibition on owning or using the contraband, but would not ever have harmed someone else), costs which almost certainly will fall the hardest on our culture’s poorest and least respected, are huge and should not be taken on lightly.

You might think that murder is not a “light” reason and indeed it is not. But given the combination of other ways to kill (guns were not part of either the 9/11 or Boston marathon terror attacks), the existence of so many of those weapons and magazines already, and the vanishingly small number of cases in which their absence would have made murder impossible, the costs of a new war on a new form of contraband—one which police could make the case present such a danger to them that already overly violent policy practice would get even more violent thus conceivably leading to more deaths than that would-be contraband cause now—seem, to some Americans, worth more than any imagined benefit. (Unless the only benefit is the ritual of “doing something.”)

So, those are some reasons some people don’t instantly leap to the conclusion that something new must be done by government in the face of this horrible mass murder Orlando just suffered through.

To be fair, if you believe any amount of harassment or restrictions on the innocent’s ability to peacefully move through American life unmolested is meaningless in the face of a vanishingly small possibility that you might prevent a murder or murders from occurring, then those reasons will not be convincing to you.

But there might be cultural and historical reasons that those more libertarian-leaning attitudes can be found in your fellow Americans, as your “any price in terms of liberty is worth paying in pursuit of any possibility of safety” attitude is strongly at odds with the structure and philosophy of American government and life as it was constituted, at its best.

Presumptive Republican presidential candidate Donald Trump has not been shy in pointing out that his poll numbers surge after a terrorist attack either at home or abroad occurs. Trump declares that he will be tough on terrorism, but other than banning Muslims from immigrating to the U.S., he remains resolutely vague on what that might mean. 

In March, the stats wizards over at the New York Times‘ FiveThirtyEight blog noted that terrorist attacks in San Bernardino and Brussels had apparently bolstered Trump’s polling numbers. And in May, Vanity Fair’s political correspondent Nick Bilton declared, “You can bet that if any significant national-security threat is posed between now and November, Trump’s poll numbers will soar in the same way that Bush’s did in 2001. And if that happens, God forbid, I’m willing to bet that he may be the next president of the United States.” Well, maybe.

Scholars, however, do generally agree that one of the chief purposes of terrorism is to attract the attention of a bigger audience to their grievances. A 2013 Journal of Peace Research study, “Voters versus Terrorists: Analyzing the Effect of Terrorst Event on Voter Turnout,” finds that terrorism does work, at least, with regard to boosting voter turnout. Broadly speaking, the researchers analyze 350 legislative elections in 51 democracies in years when there were terrorist attacks versus years in which there were no attacks. They use two different terrorism datasets; one that focuses on domestic events in Europe and another global one that collects information on both domestic and international attacks. Their analysis spans 1975 through 2004.

The researchers find that the occurrence of an attack or attacks is associated with a 2 percent increase in voter turnout when compared to an election in which there is no terrorist event in the preceding year. If the attacks were non-lethal, voter turnout rose by 1.4 percent, but if lethal, turnout increased by 2.9 percent. They conclude:

Terrorist attacks are threatening and novel political events that lead to anxiety in the electorate, which, in turn, induces individuals to examine the political environment more closely and to attribute greater salience to proximate political event. As a result of this increase in concern and the increased salience of upcoming elections, individuals are more likely to turn out to vote.

So if these social scientists are right, due to terrorist attacks more Americans will vote this year than would otherwise have done so. Still, at least according to FiveThirtyEight today, it remains to be seen how the Orlando atrocity will affect the election this fall.

It may be mystifying to conservatives and libertarians that a good chunk of angry response from the left over the Orlando shooting is directed toward conservatives, not just about gun control but over the way they’ve historically treated gays and lesbians.

It is most obviously true that even to the extent that Christian social conservatism has been hostile to acceptance of gays and lesbians, it has certainly not risen to the horrifying levels of Sunday’s attack by Omar Matteen, which he dedicated to the Islamic State. Certainly there have been radical Christians within the United States calling for violence against homosexuals. But their calls to arms have been ignored and are not institutionalized by authorities (with prison terms and even executions) as they frequently are in Muslim-dominated countries.

There has nevertheless been plenty of generalizations about the attitudes of Muslims toward homosexuality that has led some on the right to wonder why people are yelling at them over what happened on Saturday. I agree with conservatives that trying to deflect away from what actually happened to hobby-horse issues like gun control is an awful thing to do.

But a couple of Pew polls might help explain what’s going on here. It is true that there is a tremendous amount of hostility to gays and lesbians in countries where Islam is a dominant religion. A Pew poll from 2013 had the vast majority of Muslims in 36 countries overseas declaring that homosexuality is immoral. When I say “vast majority,” I mean numbers like 90 percent.

But a recent poll in 2015, also by Pew, shows that American Muslims are much less likely to share this attitude. By comparison, 45 percent of American Muslims approve of homosexuality, and 42 percent of Muslims support same-sex marriage recognition. In both cases, a greater number disapprove of acceptance than approve. But then, so do Evangelical Christians in numbers greater than American Muslims. Only 36 percent of Evangelical Christians approve of homosexuality and only 28 percent of Evangelical Christians support same-sex marriage recognition.

The good news is that support for acceptance of gays and lesbians in America has increased in all faiths between 2007 and 2014. And the point of this post is not necessarily to hold up social conservatives to criticism over an incident they had nothing to do with.

Rather, these numbers help demonstrate why exactly we cannot treat American Muslims as though they’re inherently suspicious and prone to jump into extremism and jihads. American Muslims are not necessarily more conservative than many of our country’s Christians. There are a whole host of different reasons for this (including the likelihood that Muslims immigrate to the United States in the first place to get away from extreme social conservatism within their own religion). Americans (including gay Americans) who interact regularly with Muslim citizens are probably less likely to see them as being profoundly different. Because they’re not—in the United States.

Add to this mix information that Mateen apparently declared allegiance to different Islamist groups who are opposed to ISIS, like Hezbollah. In the end, Mateen may be a vicious garden-variety psychopath that we’re treating exotically because he declared a connection to a terrorist group that hates the United States and has called for attacks against it. But in reality he may well be more reminiscent of serial killer Ted Bundy blaming his behavior on porn addiction.

The Islamic State is a violent, terrorist group (I realize that’s the mother of all “to be sure” caveats), but it’s important not to treat it like it’s a virus that people of Muslim faith can just catch. American Muslims don’t share the attitudes of the Islamic State, and so treating them with skepticism, generalizing about them, and also expecting some sort of collective responsibility that all Muslims must be held accountable for the policing those who share the faith, doesn’t seem any more helpful than more gun control regulations. It’s fear-based collectivist attitudes from the right and it reads like so many other historical fears about how various minorities will drag America down. Such generalizations feed a culture war (just like the gun control arguments) rather than examining the roots and potential solutions for the problem.

(Hat tip to former Reason editor Matt Feeney.)

• The latest info on the Orlando shooting: The police have detailed how the attack went down and their responses; more names of victims of the shooting have been released; a former co-worker of shooter Omar Mateen says the guy was a crazy nutjob; and President Barack Obama and the FBI say that, despite Mateen declaring allegiance to the Islamic State during the attack, there’s no clear evidence that ISIS actually directed his actions.
• Democrats are again going to try to use terrorist watch lists (which are bureaucratically controlled) to try to restrict individual gun rights on the basis of just suspicion rather than actual conviction of crimes, or even charges. Sen. Dianne Feinstein (D-Calif.) seems to think due process is some sort of “loophole,” a nice reminder of how awful she is.
• Police are trying to figure out the deal with the guy who brought a bunch of weapons and ammo in his vehicle to Los Angeles’ weekend gay pride events, but it seems increasingly likely that he was not planning an attack as had been previously reported by police.
• The Supreme Court declined to hear a case from a group of American Samoans who want to be granted birthright citizenship for being born in a U.S. territory.
• The Supreme Court also ruled, 5-2, that Puerto Rico cannot restructure its debts to public utilities to help ease its financial crisis.
• Microsoft bought LinkedIn, the job-related social media site that you joined and still quite aren’t sure why, for $26 billion.

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The U.S. Government Accountability Office (GAO) has released a new report about worker performance that can be briefly summarized as: Everything is awesome (or was in 2013 at least, the most recent year for which there is complete data). 

The federal government’s in-house auditing body found that the rank-and-file of the federal workforce is almost uniformly good at their jobs according to employee evaluations, with 99 percent ranked as “fully successful” or better.

A similarly impressive 78 percent of higher-level workers were ranked as outstanding or fully successful.

The performance evaluation system used for most federal employees has five levels: unacceptable, minimally successful, fully successful, exceeds fully successful and outstanding. Less than 1 percent received the bottom to evaluations. Fully 74 percent received ratings in the top two levels, with 38.6 percent of employees rated “outstanding,” 35.1 percent got “exceeds fully successful,” and 25.5 percent were “fully successful.” 

“Apparently the federal bureaucrats grading one another think virtually everyone who works for the government is doing a fantastic job,” Chairman of the House Committee on Veterans’ Affairs Rep. Jeff Miller (R-Fla.) said in a statement quoted in The Washington Post. “But given the dysfunction we’ve seen throughout the federal government over the last several years, that can’t possibly be true.”

With its trademark dryness, the GAO notes that when it comes to performance reviews, “a cultural shift might be needed among agencies and employees.” 

Libertarianism is frequently accused of only appealing to white men, but data on American political identification finds the philosophy has much broader appeal—especially among millennials. Only slightly more than half of self-identified libertarians in the 18- to  29-year-old age range are white, according to pollster Emily Ekins, formerly of the Reason Foundation (which publishes Reason magazine) and now at the Cato Institute. 

Ekins looked at several data sets to determine the demographic makeup of U.S. libertarians. For all-ages data, Ekins consulted nine Reason-Rupe surveys she conducted between 2012-2014 and a November 2015 poll conducted by Cato and YouGov, averaging the info from all 10 studies. The result: 71 percent of self-identified libertarians were white, 14 percent were Hispanic, five percent were black, eight percent identified as another race, and 4 percent chose not to answer. “While not an exact reflection,” writes Ekins, “these numbers are similar to the demographic makeup of all respondents averaged across the surveys: 67 percent white, 13 percent Latino, 12 percent African-American, 7 percent identifying as other, and 1 percent not identifying.” 

When we consider millennials alone, the picture gets much more racially diverse. For this data, Ekins turned to a study of 18- to 29-year-olds she conducted for the Reason Foundation in 2014. Among self-identified libertarians in this group, 56 percent were white, 21 percent were Hispanic, 14 percent were black, 8 percent were Asian, and 1 percent identified as none of these categories. Again, the racial breakdown for libertarians was similar to that for all millennials surveyed, with 57 percent white, 15 percent black, 15 percent Latino, 7 percent Asian, and 4 percent another race.

When it comes to sex, men dominated among both millennial libertarians and libertarians of all ages, though women still make up a substantial share of the liberty movement. According to Ekins’ poll averaging, 63 percent of all self-identified libertarians were male and 37 percent were female. Among millennials, 68 percent were male and 32 percent were female.

Studies from Pew Research Center and YouGov have ascertained similar two-to-one ratios of male to female libertarians. A 2015 poll from YouGov found 21 percent of all male respondents identified as libertarian, compared to 10 percent of female respondents. The Pew survey, from 2014, found 15 percent of men and 7 percent of women described themselves as libertarian while also being able to identify that it was a philosophy of limited government. 

In the YouGov poll, 17 percent of all Hispanic respondents, 16 percent of whites, and 11 percent of blacks said they would describe themselves as libertarian, with 47 percent of Hispanic respondents, 29 percent of white respondents, and 32 percent of black respondents saying they were “not sure” whether the label applied. 

“In sum,” writes Ekins, “Americans who choose to self-identify as libertarian in surveys tend to reflect the racial and ethnic demography of the United States more than is commonly realized, particularly among younger libertarians. However, self-identified libertarians are more like to be male than female.” 

A new study published in Education Evaluation and Policy Analysis found that the presence of zero tolerance laws in schools results in increased rates of suspensions and expulsions without imprvoving behavior or order.

The study, authored by F. Chris Curran of the University of Maryland, Baltimore County, used data collected by the National Center of Education Statistics and the U.S. Department of Education, as well as data Curran collected from researching various state laws.

“Taken as a whole, the results of this study suggest that zero tolerance laws on the part of states are not an effective mechanism for improving schools,” wrote Curran.

These approaches have also been linked to increased discipline for black and Hispanic students. One instance Curran notes is a state law which has resulted in a three times larger increase in suspensions for black students as compared with their white peers.

This is troubling, considering suspensions and expulsions hinder academic progress and, as Curran notes in his study, “have been linked to future disciplinary infractions, decreased academic achievement, and school dropout.”

Zero tolerance laws are based on deterrence theory. The theory states punishments must be present in society to discourage people from committing crime. As a punishment for an act increases in severity, the chances of someone committing said act decreases over fear of dealing with said punishment, at least in theory.

Federal, state, and local leaders push these laws to punish students for various actions, including bringing weapons onto school grounds and drug-related offenses.

Actions like these are worth punishing, but zero tolerance laws punish students equally regardless of circumstance or the severity of the act in question.

Recent instances of absurd zero tolerance abuses include the suspension of a student over a bubble gun and threatened expulsions of two students over fishing knives left in their cars. The students in these situations were harshly disciplined for relatively harmless acts under a system that should be protecting them.

Rather than keeping students safe, zero tolerance laws keep children out of the classroom for what no sane person would consider threathening acts. Schools are supposed to be environments where children learn about various subjects as well as appropriate conduct. Instead of teaching them the best behaviors, schools that enact zero tolerance policies are forcing students to abide by unfair or ineffective rules that punish innocent mistakes as if they were actual threats.

To learn more about the ridiculousness of zero tolerance laws, you can read past stories written by Reason staff here.

Given the extreme awfulness of Hillary Clinton and Donald Trump, the Libertarian Party might be having its moment after all.

In an op-ed for U.S. News and World Report, I make the case for 2016 as the Year of Gary Johnson:

In the coming days and months, Trump will continue to call Clinton a “crooked” politician with no moral compass. Clinton will call Trump mentally unstable and dangerous. They will both be correct. And Americans will be wishing for, and possibly actually looking for, alternatives.

Given this reality, it’s not surprising that Johnson is already drumming up much more interest than when he ran in 2012. While Johnson probably can’t win the White House, if he earns 5 percent of the total vote – he got 1 percent in 2012 – the Libertarian Party could qualify for public campaign financing in the next election cycle. And the more people who express a desire to vote for Johnson, the closer he’ll get to being included in the main television presidential debates this fall. Being on the main debate stage would dramatically boost Johnson’s recognition and be a game-changer for the Libertarian Party, presenting it as a viable third-party alternative to Democrats and Republicans and distributing its messages to millions of Americans who know little or nothing about the party. Johnson needs to show support from at least 15 percent of Americans in key polls to get on the debate stage. He hit 12 percent in the latest national Fox News poll.

Read the full thing here.

The U.S. Supreme Court will conclude its 2015-2016 term in less than three weeks. As of this writing, 16 argued cases remain undecided. Among them is Fisher v. University of Texas at Austin, a major constitutional dispute over the use of affirmative action by a public university. A decision in that case could arrive as soon as this week.

Fisher has been knocking around the federal courts for some time now. In 2008 Abigail Fisher, a white applicant, was denied undergraduate admission to the University of Texas at Austin (UT). Claiming that UT’s race conscious admissions policy denied her the right to equal treatment under the law, Fisher sued in federal court, charging UT with violating the Equal Protection Clause of the 14th Amendment. But Fisher lost in U.S. District Court in 2009 and then lost again when the U.S. Court of Appeals for the 5th Circuit upheld the school’s policy as constitutionally permissible in 2011.

Fisher fared better before the U.S. Supreme Court, which in 2013 vacated the 5th Circuit’s judgment and ordered that court to rehear the case. According to Justice Anthony Kennedy’s 7-1 majority opinion (Justice Elena Kagan was recused and Justice Ruth Bader Ginsburg voted in dissent), the 5th Circuit erred in Fisher “by deferring to the University’s good faith in its use of racial classifications.” But “in fairness to the litigants and the courts that heard the case,” Kennedy continued, the case should “be remanded so that the admissions process can be considered and judged under a correct analysis.”

The correct analysis that the Supreme Court ordered the 5th Circuit to employ on remand is the tough level of judicial review known as “strict scrutiny.” In brief, strict scrutiny says that when the government (including public universities) employs any sort of racial classification, that use of race must pass a two-part legal test. First, the use of race must serve a compelling government interest; second, the use of race must be narrowly tailored to achieve that compelling interest. Under current Supreme Court precedent, seeking to ensure diversity on campus counts as a compelling government interest. The question in Fisher is whether UT’s affirmative action plan is narrowly tailored to achieve the government’s compelling interest in campus diversity. Put differently, if UT has the option of promoting campus diversity via a less restrictive means than the one it is currently using, UT has failed the second part of the test and is supposed to lose the case under strict scrutiny.

Several months after the Supreme Court issued its decision, the 5th Circuit decided the case on remand, ruling once again in favor of UT’s affirmative action policy. Shortly thereafter the Supreme Court once again decided to step in and review the 5th Circuit’s judgment.     

During the December 2015 oral arguments in what we might call Fisher II, Abigail Fisher’s attorney, Burt Rein, stressed that the use of race by the government is a “forbidden tool,” an “odious classification” that the government should only be allowed to employ as a last resort. Gregory Garre, the lawyer representing the University of Texas, maintained that it is both necessary and proper for a public university to take race into account in order to avoid “the decrease in student body diversity under the very race-neutral policies that our opponents are asking this Court to impose.”

Boiled down, this case presents a clash of constitutional visions. Is the Constitution a colorblind document that permits the government to take race into account in only the very rarest of circumstances? Or does the Constitution necessarily allow race conscious government programs like affirmative action in order to ensure that equal protection includes equal opportunity?

This Thursday the Supreme Court is scheduled to release its next batch of opinions in argued cases. Keep an eye peeled for Fisher II.