Biden Said His Tax Hikes Would Only Affect the Rich. He Can’t Keep That Promise.


covphotos122665

Politicians betray their campaign promises all the time. So, it’s no surprise to see President Joe Biden go back on his word that, in spite of his plan to significantly hike taxes to pay for a portion of a massive increase in spending, nobody earning less than $400,000 annually would suffer a tax increase. But this flip-flop is just the tip of the iceberg.

During the presidential campaign, then-candidate Biden declared that if someone makes less than $400,000, they wouldn’t face any tax hikes. His campaign website reinforced this promise: “Joe Biden will not raise taxes on anyone making less than $400,000. Period.” The president recently reiterated his promise on “Good Morning America” when he said, “Anybody making more than $400,000 will see a small to a significant tax increase,” and “You make less than $400,000, you won’t see one single penny in additional federal tax.”

But then his press secretary, Jen Psaki, announced during a press conference that the threshold of $400,000 refers to family income. She contradicted herself a few days later, saying, “The president remains committed to his pledge from the campaign that nobody making under $400,000 a year will have their taxes increased.”

Either the administration still isn’t fully clear on where it stands, or some taxpayers may be in for a big surprise—or both.

Either way, the sad truth is that with this president’s insane propensity for unconstrained government spending, he shouldn’t make such a promise in the first place. He has already added $1.9 trillion to the enormously inflated federal credit card and is planning on throwing another almost $4 trillion on it in what he deems infrastructure spending. If he sticks to his campaign promises, Biden plans to splurge $11 trillion in additional spending over a decade. Meanwhile, his proposed tax hikes are estimated to reap $2.1 to $2.8 trillion. In other words, for every $5 or $6 in new spending, $1 will be paid for in new taxes, and the rest goes on the nation’s credit card.

I know that’s what politicians do, but that’s still not right. If he wants to raise spending to that level, everyone should pay some price for this growth in government, not simply those earning more than $400,000. That criticism applies to every president before him and will, I’m sure, to many after him.

It’s time for the Democrats who elect presidents that promise not to jack up taxes on anybody but the rich to come to terms with something: These politicians can’t continue to spend that much money without raising taxes on nearly everyone, and that includes some regressive taxes. I don’t like it, since I’d prefer the size and scope of government to be significantly smaller—but this reality is not optional.

Here’s another reason why Biden was never going to be able to keep his promise: He already announced his intention to increase the corporate income tax from the current 21 percent to 28 percent. The reality here is that the corporations that he says are going to send bigger checks to the Internal Revenue Service (IRS) after the tax hike aren’t the ones who actually shoulder this heavier tax burden.

The best explanation I’ve seen on this comes from a 2004 quote by economist Stephen Entin, who wrote, “The economic burden of a tax frequently does not rest with the person or business who has the statutory liability for paying the tax to the government.” That’s because taxes are ultimately only paid by people.

In this case, the burden of Biden’s corporate tax-rate hike will inevitably fall on corporations’ workers and shareholders (which includes almost everyone with a retirement plan), many of whom earn much less than $400,000 a year. Workers might not personally be sending more or bigger checks to the IRS, but they will still suffer higher taxation in the form of lower wages, as well as higher prices for consumer goods and services.

Economists aren’t sure how much of the hike will fall on workers. Estimates range from 66 percent to 100 percent of the tax falling on workers in the form of lower wages. The bottom line is that nobody can determine who truly bears the burden of a tax just by looking at where or on whom it is formally imposed, despite what the tax is called. But one thing is sure: Biden’s promise not to raise taxes on individuals making less than $400,000 is bunk.

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Biden Said His Tax Hikes Would Only Affect the Rich. He Can’t Keep That Promise.


covphotos122665

Politicians betray their campaign promises all the time. So, it’s no surprise to see President Joe Biden go back on his word that, in spite of his plan to significantly hike taxes to pay for a portion of a massive increase in spending, nobody earning less than $400,000 annually would suffer a tax increase. But this flip-flop is just the tip of the iceberg.

During the presidential campaign, then-candidate Biden declared that if someone makes less than $400,000, they wouldn’t face any tax hikes. His campaign website reinforced this promise: “Joe Biden will not raise taxes on anyone making less than $400,000. Period.” The president recently reiterated his promise on “Good Morning America” when he said, “Anybody making more than $400,000 will see a small to a significant tax increase,” and “You make less than $400,000, you won’t see one single penny in additional federal tax.”

But then his press secretary, Jen Psaki, announced during a press conference that the threshold of $400,000 refers to family income. She contradicted herself a few days later, saying, “The president remains committed to his pledge from the campaign that nobody making under $400,000 a year will have their taxes increased.”

Either the administration still isn’t fully clear on where it stands, or some taxpayers may be in for a big surprise—or both.

Either way, the sad truth is that with this president’s insane propensity for unconstrained government spending, he shouldn’t make such a promise in the first place. He has already added $1.9 trillion to the enormously inflated federal credit card and is planning on throwing another almost $4 trillion on it in what he deems infrastructure spending. If he sticks to his campaign promises, Biden plans to splurge $11 trillion in additional spending over a decade. Meanwhile, his proposed tax hikes are estimated to reap $2.1 to $2.8 trillion. In other words, for every $5 or $6 in new spending, $1 will be paid for in new taxes, and the rest goes on the nation’s credit card.

I know that’s what politicians do, but that’s still not right. If he wants to raise spending to that level, everyone should pay some price for this growth in government, not simply those earning more than $400,000. That criticism applies to every president before him and will, I’m sure, to many after him.

It’s time for the Democrats who elect presidents that promise not to jack up taxes on anybody but the rich to come to terms with something: These politicians can’t continue to spend that much money without raising taxes on nearly everyone, and that includes some regressive taxes. I don’t like it, since I’d prefer the size and scope of government to be significantly smaller—but this reality is not optional.

Here’s another reason why Biden was never going to be able to keep his promise: He already announced his intention to increase the corporate income tax from the current 21 percent to 28 percent. The reality here is that the corporations that he says are going to send bigger checks to the Internal Revenue Service (IRS) after the tax hike aren’t the ones who actually shoulder this heavier tax burden.

The best explanation I’ve seen on this comes from a 2004 quote by economist Stephen Entin, who wrote, “The economic burden of a tax frequently does not rest with the person or business who has the statutory liability for paying the tax to the government.” That’s because taxes are ultimately only paid by people.

In this case, the burden of Biden’s corporate tax-rate hike will inevitably fall on corporations’ workers and shareholders (which includes almost everyone with a retirement plan), many of whom earn much less than $400,000 a year. Workers might not personally be sending more or bigger checks to the IRS, but they will still suffer higher taxation in the form of lower wages, as well as higher prices for consumer goods and services.

Economists aren’t sure how much of the hike will fall on workers. Estimates range from 66 percent to 100 percent of the tax falling on workers in the form of lower wages. The bottom line is that nobody can determine who truly bears the burden of a tax just by looking at where or on whom it is formally imposed, despite what the tax is called. But one thing is sure: Biden’s promise not to raise taxes on individuals making less than $400,000 is bunk.

COPYRIGHT 2021 CREATORS.COM

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Italy Expels Russian Diplomats Over “Extremely Serious” NATO Spy Case

Italy Expels Russian Diplomats Over “Extremely Serious” NATO Spy Case

What’s being described as an “extremely serious incident” and fast escalating spy case has resulted in the Italian government expelling two Russian diplomats from the country on Wednesday. Russian Ambassador Sergei Razov had been immediately summoned and informed of the drastic punitive action.

The case reportedly involves an Italian navy captain who was caught passing secret documents belonging to the NATO member state to a Russian military official on Tuesday night. The Italian navy officer is alleged to have received money in return.

Via AFP

It’s since escalated into a major diplomatic spat between Italy and Russian, with the Kremlin now vowing retaliation for the expelling of the two diplomats. Western allies are now weighing in on the dispute, fueling the controversy further, with British Foreign Secretary Dominic Raab saying the UK “stands in solidarity with Italy and its actions today, exposing and taking action against Russia’s malign and destabilising activity that is designed to undermine our NATO ally.”

Here are the few details known related to the spy charges as laid out in Reuters:

The Italian, a captain of a frigate, and the Russian, who was accredited at the embassy, were accused of “serious crimes tied to spying and state security” after their meeting on Tuesday night, Italian Carabinieri police said.

The suspects were not officially identified. A police source said the captain was called Walter Biot, adding that he added accepted 5,000 euros ($5,865) in return for the information.

Italian news sources identified that “NATO documents were among the files that the Italian had handed over” – which has led to inquiries over security vulnerability by other NATO members of the alliance. And further the AFP described “confidential documents” passed during a “clandestine meeting” – after which Russia’s ambassador on Wednesday morning was issued notification of “the immediate expulsion of the two Russian officials involved in this very serious affair”.

It appears the “clandestine meeting” was being monitored by Italian police and intelligence, given there’s widespread reports that the Italian captain was “caught red-handed”. The Russian officials involved avoided arrest due to diplomatic immunity.

The Russian Embassy in Italy, via Wiki Commons

Foreign Minister Luigi Di Maio stated of the developing case Wednesday that “The accusation of espionage against Italian and Russian officers shows that we must continue to work closely with Europe and our allies to constantly improve our means of protecting the safety and well-being of our citizens.”

No further information has been publicly released as to the identities of the Russians expelled, but it’s being reported via the Russian embassy in Rome that the pair worked in the Russian military attaché’s office, according to Reuters.

The Italian captain Biot meanwhile has been arrested and is undergoing questioning and an investigation.

Tyler Durden
Thu, 04/01/2021 – 02:45

via ZeroHedge News https://ift.tt/3udhZFS Tyler Durden

China’s Threat To Free Speech In Europe

China’s Threat To Free Speech In Europe

Authored by Soeren Kern via The Gatestone Institute,

China has imposed sanctions on more than two dozen European and British lawmakers, academics and think tanks. The move comes after the European Union and the United Kingdom imposed sanctions on Chinese officials for human rights abuses in China’s Xinjiang region.

China contends that its sanctions are tit for tat — morally equivalent retaliation — in response to those imposed by Western countries. This is false. The European sanctions are for crimes against humanity, whereas the Chinese sanctions seek to silence European critics of the Chinese Communist Party.

The current standoff is, in essence, about the future of free speech in Europe. If notoriously feckless European officials fail to stand firm in the face of mounting Chinese pressure, Europeans who dare publicly to criticize the CCP in the future can expect to pay an increasingly high personal cost for doing so.

On March 22, the European Union and the United Kingdom announced (here and here) that they had imposed sanctions on four Chinese officials accused of responsibility for abuses against Uyghur Muslims in Xinjiang, a remote autonomous region in northwestern China.

Human rights experts say at least one million Muslims are being detained in up to 380 internment camps, where they are subject to torturemass rapesforced labor and sterilizations. After first denying the existence of the camps, China now says that they provide vocational education and training.

Among those targeted by the EU are Chen Mingguo, director of the Xinjiang Public Security Bureau (XPSB). In its Official Journal, the EU stated:

“As Director of the XPSB, Chen Mingguo holds a key position in Xinjiang’s security apparatus and is directly involved in implementing a large-scale surveillance, detention and indoctrination program targeting Uyghurs and people from other Muslim ethnic minorities. In particular, the XPSB has deployed the ‘Integrated Joint Operations Platform’ (IJOP), a big data program used to track millions of Uyghurs in the Xinjiang region and flag those deemed ‘potentially threatening’ to be sent to detention camps. Chen Mingguo is therefore responsible for serious human rights violations in China, in particular arbitrary detentions and degrading treatment inflicted upon Uyghurs and people from other Muslim ethnic minorities, as well as systematic violations of their freedom of religion or belief.”

The EU sanctions, which involve travel bans and asset freezes, conspicuously exclude the top official in Xinjiang, Chen Quanguo, who has been targeted by U.S. sanctions since July 2020. The EU apparently was attempting to show restraint in an effort to forestall an escalation by China.

The Chinese government responded to the EU sanctions within minutes by announcing its own sanctions on 14 European individuals and entities. The individuals and their families are prohibited from entering mainland China, Hong Kong and Macao. They and companies and institutions associated with them are also restricted from doing business with China.

Those prohibited from entering China or doing business with it are German politician Reinhard Bütikofer, who chairs the European Parliament’s delegation to China, Michael Gahler, Raphaël Glucksmann, Ilhan Kyuchyuk and Miriam Lexmann, all Members of the European Parliament, Sjoerd Wiemer Sjoerdsma of the Dutch Parliament, Samuel Cogolati of the Belgian Parliament, Dovilė Šakalienė of the Seimas of Lithuania, German scholar Adrian Zenz, and Swedish scholar Björn Jerdén.

The ten individuals have publicly criticized the Chinese government for human rights abuses. Sjoerdsma, for instance, recently called for a boycott of the Winter Olympics in Beijing in 2022. Cogolati and Šakalienė have drafted genocide legislation, while Zenz has written extensively on the detention camps in Xinjiang.

China also sanctioned the EU’s main foreign policy decision-making body, known as the Political and Security Committee, as well as the European Parliament’s Subcommittee on Human Rights, the Berlin-based Mercator Institute for China Studies, and the Alliance of Democracies Foundation, a Danish think tank founded by former NATO secretary-general Anders Fogh Rasmussen.

In a March 22 statement, China’s Ministry of Foreign Affairs said:

“The Chinese side urges the EU side to reflect on itself, face squarely the severity of its mistake and redress it. It must stop lecturing others on human rights and interfering in their internal affairs. It must end the hypocritical practice of double standards and stop going further down the wrong path. Otherwise, China will resolutely make further reactions.”

A few days later, on March 26, China announced sanctions on nine British individuals and four entities. The individuals include Tom Tugendhat, Iain Duncan Smith, Neil O’Brien, David Alton, Tim Loughton, Nusrat Ghani, Helena Kennedy, Geoffrey Nice, Joanne Nicola Smith Finley. The entities include China Research Group, Conservative Party Human Rights Commission, Uyghur Tribunal and the Essex Court Chambers.

On March 27, China announced additional sanctions on Americans and Canadian individuals and entities. China’s Ministry of Foreign Affairs warned Canada and the United States to “stop political manipulation” or “they will get their fingers burnt.”

EU-China Investment Deal

The EU sanctions, the first such punitive measure against China since an EU arms embargo was imposed in 1989 after the Tiananmen Square pro-democracy crackdown, appear to indicate that both the EU and the UK plan to follow the United States and pursue a harder line against human rights abuses by the Chinese government.

The bedrock of EU-China relations has always been economic, and European leaders have long been accused of downplaying human rights abuses in China to protect European business interests there.

German Chancellor Angela Merkel, French President Emmanuel Macron, the President of the European Commission, Ursula von der Leyen and European Council President Charles Michel recently negotiated a controversial trade deal with China.

The so-called Comprehensive Agreement on Investment (CAI), concluded on December 30, was negotiated in great haste. Merkel, facing pressure from both China and German industry, reportedly wanted an agreement at any cost before Germany’s six-month EU presidency ended on December 31, 2020.

The lopsided agreement, which ostensibly aims to level the economic and financial playing field by providing European companies with improved access to the Chinese market, actually allows China to continue to restrict investment opportunities for European companies in many strategic sectors.

One week after the deal was signed, China launched a massive crackdown on democracy activists in Hong Kong.

Now that China has imposed sanctions on European lawmakers, the investment agreement may never see the light of day. “It seems unthinkable that our Parliament would even entertain the idea of ratifying an agreement while its members and one of its committees are under sanctions,” said MEP Marie-Pierre Vedrenne, a parliamentary point-person for the EU-China deal.

European Responses

The President of the European Commission, Ursula von der Leyen, has been strangely silent regarding the Chinese sanctions. Others have been outspoken in their criticism:

“We sanction people who violate human rights, not parliamentarians, as has now been done by the Chinese side,” said German Foreign Minister Heiko Maas. “This is neither comprehensible nor acceptable for us.”

After being put on China’s sanctions list, Dutch lawmaker Sjoerd Sjoerdsma tweeted:

“As long as human rights are being violated, I cannot stay silent. These sanctions prove that China is sensitive to pressure. Let this be an encouragement to all my European colleagues: Speak out!”

British Prime Minister Boris Johnson invited several of the MPs hit by Chinese sanctions to Downing Street. He tweeted:

“This morning I spoke with some of those who have been shining a light on the gross human rights violations being perpetrated against Uyghur Muslims. I stand firmly with them and the other British citizens sanctioned by China.”

Johnson referred to the parliamentarians as “warriors in the fight for free speech” who have his “full-throated support” and expressed bafflement at Beijing’s “ridiculous” actions.

British Foreign Secretary Dominic Raab added:

“It speaks volumes that, while the UK joins the international community in sanctioning those responsible for human rights abuses, the Chinese government sanctions its critics. If Beijing wants to credibly rebut claims of human rights abuses in Xinjiang, it should allow the UN high commissioner for human rights full access to verify the truth.”

Former Tory leader Iain Duncan Smith tweeted:

It is our duty to call out the Chinese government’s human rights abuses in Hong Kong and their genocide of the Uighur people. Those of us who live free lives under the rule of law must speak for those who have no voice. If that brings the anger of China down upon me the I shall wear that as a badge of honor.”

Labour MP Lisa Nandy, in an interview with the BBC, said:

“This is incredibly serious. It’s a direct attempt to silence and intimidate those who criticize the actions of the Chinese government. If China thinks that this will silence critics, they are completely mistaken….

“This will only strengthen our resolve to be more vocal and more resolute in calling out and challenging the grotesque human rights abuses that we’ve seen coming out of Xinjiang and the clampdown on democracy in Hong Kong. We are British Parliamentarians who will not be divided on this. Whatever political tradition we come from, we are first and foremost democrats and we will stand up for those values, especially when they are under attack.”

MP Tom Tugendhat, Chairman of the Foreign Affairs Committee, in an interview with the BBC, said:

“What we are seeing at the moment is a vulnerable and weak China that has failed in its democratic outreach to states around the region, it has failed to undermine the coalition of countries that are standing up for human rights and it has failed to undermine the connection between the UK, the US and indeed Europe, so what they are doing is lashing out.

“Sadly, this is a sign of weakness and not a sign of strength and a demonstration that President Xi is failing the Chinese people, the Chinese Community Party and, indeed, failing the whole world.”

British academic Jo Smith Finley tweeted:

“It seems I am to be sanctioned by the PRC (Chinese) government for speaking the truth about the #Uyghur tragedy in #Xinjiang, and for having a conscience. Well, so be it. I have no regrets for speaking out, and I will not be silenced.”

Adrian Zenz, a German scholar subject to Chinese sanctions, tweeted:

“Beijing’s strategy on Xinjiang is fundamentally shifting. Their goal is not mainly to erase the evidence, although they do that. It is now also less about denying said evidence, although they still do it. Rather, they now feel untouchable about it all.

“Beijing’s strategy is to simply crush and silence any global opposition to its atrocity by inflicting crushingly punitive measures on anyone who speaks out. A very concerning development.”

The China Research Group, which was established by a group of Conservative MPs in the UK to promote debate and fresh thinking about how Britain should respond to the rise of China, concluded:

“It is tempting to laugh off this measure as a diplomatic tantrum. But in reality it is profoundly sinister and just serves as a clear demonstration of many of the concerns we have been raising about the direction of China under Xi Jinping. Other mainstream European think tanks have also been sanctioned this week and it is telling that China now responds to even moderate criticism with sanctions, rather than attempting to defend its actions in Hong Kong and Xinjiang.”

The founder of the Alliance of Democracies Foundation, Anders Fogh Rasmussen, said:

“We will never give in to bullying by authoritarian states. Our work to promote freedom, democracy and human rights around the world will continue. China has once again highlighted the urgent need for democracies to unite in stemming the tide of autocracy in our world.”

Select Commentary

In an editorial, the Financial Times wrote that the EU’s sanctions on China are a sign of Western resolve on China.

“China retaliated against EU sanctions by punishing several parliamentarians, analysts, and Merics, a think-tank on China based in Berlin known for its judicious analysis. It also targeted the committee of 27 member-state ambassadors to the EU who oversee foreign and security policy. Beijing has in recent years used a divide-and-conquer approach with national capitals to undermine a common EU front. With its Xinjiang abuses and overreaction on sanctions, Beijing has managed the rare feat of uniting the EU on a foreign policy issue.

“By targeting critics of its actions and analysts who refuse to toe its line, Beijing has demonstrated its totalitarian mindset. By punishing European Parliament members, it has made it all but impossible for that legislature to ratify the investment agreement. MEPs were already clamoring for more concessions from Beijing, namely the adoption of international standards outlawing forced labor. China will need to make a double retreat to put the deal back on track, which seems unlikely. Having used the investment deal to drive a monetary wedge between Washington and Brussels, Beijing may feel it can dispense with it.”

The Guardian, in an editorial, wrote:

“The sanctions have drastically lowered the odds of the European parliament approving the investment deal which China and the EU agreed in December, to US annoyance. Beijing may think the agreement less useful to China than it is to the EU (though many in Europe disagree). But the measures have done more to push Europe towards alignment with the US than anything Joe Biden could have offered, at a time when China is also alienating other players, notably Australia….

“Beijing’s delayed response to the UK sanctions suggests it did not anticipate them, perhaps unsurprising when the integrated review suggested we should somehow court trade and investment while also taking a tougher line. But the prime minister and foreign secretary have, rightly, made their support for sanctioned individuals and their concerns about gross human rights violations in Xinjiang clear. Academics and politicians, universities and other institutions, should follow their lead in backing targeted colleagues and bodies. China has made its position plain. So should democratic societies.”

Lea Deuber, China correspondent for Süddeutsche Zeitungwrote:

“In response to European sanctions against those responsible for human rights crimes in Xinjiang, Beijing is sanctioning European politicians, academics and research institutes. The sanctions must not be understood as a threat against individuals. They are an attack on the entire European Union, on its fundamental values ​​and freedom.

“Beijing accuses the EU of questioning China’s sovereignty. In reality, the regime is trying to force the European Union to take sides in the dispute between the U.S. and China through violence and manipulation. The escalation must be a wake-up call.

For far too long the EU has believed in the illusion of a middle ground. With a view to the cruel conduct in Xinjiang, Brussels waited for years, only appealing again and again. Even with the sanctions, Brussels had sought a softened solution, disregarding important Chinese players in the region.

“That must come to an end. Berlin must draw conclusions. At the end of last year, contrary to all warnings, the German government pushed through the investment agreement with China. This still has to be ratified by the EU Parliament. That is now unthinkable.”

The Frankfurter Allgemeine, in an article titled, “Anyone Who Does Not Sing Beijing’s Song Will be Punished,” wrote: “In plain language: Beijing wants to decide who in Europe can talk or write about China.”

UK MP Nusrat Ghani, writing for the Spectatornoted:

“There is a positive side to all this. The reaction from the Chinese Communist Party shows that some of the work going on in Parliament is having an effect — and is reaching the ears of those who matter in Beijing. Twelve months ago, the abuse of the Uyghurs in Xinjiang was only whispered about in Parliament. There was no sense that the UK’s supply chains might be affected, or that we could bring about real change. Now the Business, Energy and Industrial Strategy Committee, of which I am a member, has held an inquiry into forced labor in UK value chains, and we have found ‘compelling evidence’ of Chinese slave labor links to major brands.

“The Chinese authorities should realize that their actions today have laid down a challenge for Parliament. They have essentially told MPs to stop asking questions and to mind their own business. Throughout its history, our Parliament has never much liked that attitude. I can assure the Chinese Communist Party that I and my fellow MPs will continue to shine a light on their activities, and that Parliament — more than ever — stands behind us.”

Robin Brandt, Shanghai correspondent for the BBC, wrote:

“China has gone for the people exerting the most pressure on Boris Johnson to be tough on China. It’s gone for the people who say ‘genocide’ has happened in Xinjiang.

“The measures are essentially tokenistic — it’s unlikely these people or entities did any business with Chinese firms or people anyway.

“Targeting Neil O’Brien is personal for the UK prime minister. The MP is in charge of leading policy in Downing Street.

“Going after Essex Court Chambers — a group of self-employed barristers — for a legal opinion it reached also shows you how China views an independent judicial system. It doesn’t believe in them.”

Sophia Yan, China correspondent for the Telegraph, in an analysis, wrote:

“Beijing’s sanctions against the UK and EU — targeting MPs, academics, even legal groups — show the regime of Xi Jinping will not tolerate dissent from anyone, anywhere….

“China is flexing its muscles to challenge a rules-based world order set by the West in a campaign to be treated as an equal. It plays well at home.

“But there are genuine questions over whether the show of force is wise. Beijing’s behavior is certainly not winning hearts and minds, and instead appears to be doing damage to its international standing.

“Beijing has long bet that most countries would be wooed by lucrative opportunities with the world’s second-largest economy.

“How long that will continue to be the case remains to be seen. Britain, for its part, is unlikely to step back from its criticism of human rights abuses in Xinjiang, and it’s hard to see how China could cool tensions if it wanted to….

“A key test of whether Beijing can get away with throwing its weight around like this will be whether the EU moves to ratify an investment agreement with China. It has been in the works for seven years, but EU officials were expressing doubts even before they were hit with sanctions.

“Whether the deal is approved, renegotiated, or scrapped entirely will send a message to Beijing — either that it can indeed do what it wants, or that it’s crossed a line.”

Writing for the Wall Street Journal, Matt Pottinger, former deputy White House national security adviser, concluded:

“Beijing’s message is unmistakable: You must choose. If you want to do business in China, it must be at the expense of American values. You will meticulously ignore the genocide of ethnic and religious minorities inside China’s borders; you must disregard that Beijing has reneged on its major promises—including the international treaty guaranteeing a ‘high degree of autonomy’ for Hong Kong; and you must stop engaging with security-minded officials in your own capital unless it’s to lobby them on Beijing’s behalf.

“Another notable element of Beijing’s approach is its explicit goal of making the world permanently dependent on China, and exploiting that dependency for political ends. Mr. Xi has issued guidance, institutionalized this month by his rubber-stamp parliament, that he’s pursuing a grand strategy of making China independent of high-end imports from industrialized nations while making those nations heavily reliant on China for high-tech supplies and as a market for raw materials. In other words, decoupling is precisely Beijing’s strategy—so long as it’s on Beijing’s terms.

“Even more remarkable, the Communist Party is no longer hiding its reasons for pursuing such a strategy. In a speech Mr. Xi delivered early last year…he said China ‘must tighten international production chains’ dependence on China’ with the aim of ‘forming powerful countermeasures and deterrent capabilities.’

“This phrase — ‘powerful countermeasures and deterrent capabilities’ — is party jargon for offensive leverage. Beijing’s grand strategy is to accumulate and exert economic leverage to achieve its political objectives around the world.

“CEOs will find it increasingly difficult to please both Washington and Beijing…. Chinese leaders, as mentioned, are issuing high-decibel warnings that multinationals must abandon such values as the price of doing business in China. Like sailors straddling two boats, American companies are likely to get wet.

“Beijing is trying to engineer victory from the mind of a single leader; free societies like ours harness the human spirit. Therein lies our ultimate advantage. The Communist Party’s leaders are right about one thing: American CEOs, their boards and their investors have to decide which side they want to help win.”

Tyler Durden
Thu, 04/01/2021 – 02:00

via ZeroHedge News https://ift.tt/3wfOd4Y Tyler Durden

Biden Lets Trump Work Visa Ban Expire


visa ban

Yesterday, President Biden allowed Donald Trump’s ban on a wide range of temporary work visas for foreign workers to expire. He thereby ended a badly flawed policy enacted by the previous administration on the pretext that it was needed to benefit the US economy and curb the spread of Covid. In February, Biden revoked Trump’s accompanying policy barring nearly all entry by immigrants seeking permanent residency in the United States.

Between these two moves, Biden has ended a period when the US was more closed off to immigration than at any previous point in its history. In truth, Biden should have ended the work visa ban earlier, as he did with the immigration ban. As he himself pointed out during the presidential campaign, the visa band nothing to protect the US, and “also harms industries in the United States that utilize talent from around the world.”

But late is still a lot better than never. And I have to admit that Biden has ended both policies faster than I initially thought he would. I outlined the legal and policy flaws in the migration and visa bans in greater detail in a June 2020 article in The Atlantic.

The expiration of the work visa ban probably moots out ongoing litigation challenging its legality. In October, a federal district court ruled against the Trump administration on this issue, in part because the sweeping power claimed by Trump (and later continued for a time by Biden) violates nondelegation principles. The court issued a preliminary injunction barring enforcement of the ban against the many employers who are members of the the US Chamber of Commerce, the National Association of Manufacturers, and other industry groups who were plaintiffs in the case.

The nondelegation issue raised in that case is an extremely important one, with applications to a wide range of other immigration and trade restrictions. See my discussion here, here, here, and here.

While Biden deserves credit for revoking the work visa restrictions and immigration bans, and for such measures as ending Trump’s “travel bans” against residents of numerous Muslim-majority nations, he has not yet ended all of the previous administration’s dubious immigration policies. Among other things, he is to blame for perpetuating its Title 42 expulsions of most migrants crossing the Mexican border, a policy which is to blame for much of the current crisis involving unaccompanied minors apprehended at the border (as the continued expulsion of family groups incentivizes families to send children to cross on their own).

Like the visa bans, the Title 42 expulsions are of dubious legality    and do not actually benefit public health. Indeed, they were enacted by the Trump White House  over the opposition of CDC scientists, who believed them to be unnecessary.

The Biden administration has taken a number of valuable steps to undo the harmful immigration policies of its predecessor. But there is plenty of room for further progress.

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The Ninth Circuit Still Does Not Understand SCOTUS COVID-19 Free Exercise Clause Cases

It is now April 2021. I have lost count of how many times the Ninth Circuit has disregarded the Supreme Court’s COVID-19 Free Exercise Clause cases. (Of course, all from the shadow docket). I won’t even bother discussing the majority opinion in Tandon v. Newsom. Judge Bumatay’s dissent is all you need to read:

The instructions provided by the Court are clear and, by now, redundant. First, regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny. Roman Catholic Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free Exercise Clause merely by permitting some secular businesses to languish in disfavored status alongside religious activity. Id. Second, the fact that a restriction is itself phrased without reference to religion is not dispositive. See Gateway City Church, 2021 WL 753575, at *1. So long as some comparable secular activities are less burdened than religious activity, strict scrutiny applies. Third, businesses are analogous comparators to religious practice in the pandemic context. Roman Catholic Diocese.

The first and third elements are the most important.

Next stop, an application for an injunction at the Supreme Court. This case involves in-home bible study. But it also involves singing. Let’s see what Justices Kavanaugh and Barrett do here. In any event, Governor Newsom will likely play a game of whac-a-mole and rescind the regulation to frustrate appellate review.

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Biden Lets Trump Work Visa Ban Expire


visa ban

Yesterday, President Biden allowed Donald Trump’s ban on a wide range of temporary work visas for foreign workers to expire. He thereby ended a badly flawed policy enacted by the previous administration on the pretext that it was needed to benefit the US economy and curb the spread of Covid. In February, Biden revoked Trump’s accompanying policy barring nearly all entry by immigrants seeking permanent residency in the United States.

Between these two moves, Biden has ended a period when the US was more closed off to immigration than at any previous point in its history. In truth, Biden should have ended the work visa ban earlier, as he did with the immigration ban. As he himself pointed out during the presidential campaign, the visa band nothing to protect the US, and “also harms industries in the United States that utilize talent from around the world.”

But late is still a lot better than never. And I have to admit that Biden has ended both policies faster than I initially thought he would. I outlined the legal and policy flaws in the migration and visa bans in greater detail in a June 2020 article in The Atlantic.

The expiration of the work visa ban probably moots out ongoing litigation challenging its legality. In October, a federal district court ruled against the Trump administration on this issue, in part because the sweeping power claimed by Trump (and later continued for a time by Biden) violates nondelegation principles. The court issued a preliminary injunction barring enforcement of the ban against the many employers who are members of the the US Chamber of Commerce, the National Association of Manufacturers, and other industry groups who were plaintiffs in the case.

The nondelegation issue raised in that case is an extremely important one, with applications to a wide range of other immigration and trade restrictions. See my discussion here, here, here, and here.

While Biden deserves credit for revoking the work visa restrictions and immigration bans, and for such measures as ending Trump’s “travel bans” against residents of numerous Muslim-majority nations, he has not yet ended all of the previous administration’s dubious immigration policies. Among other things, he is to blame for perpetuating its Title 42 expulsions of most migrants crossing the Mexican border, a policy which is to blame for much of the current crisis involving unaccompanied minors apprehended at the border (as the continued expulsion of family groups incentivizes families to send children to cross on their own).

Like the visa bans, the Title 42 expulsions are of dubious legality    and do not actually benefit public health. Indeed, they were enacted by the Trump White House  over the opposition of CDC scientists, who believed them to be unnecessary.

The Biden administration has taken a number of valuable steps to undo the harmful immigration policies of its predecessor. But there is plenty of room for further progress.

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The Ninth Circuit Still Does Not Understand SCOTUS COVID-19 Free Exercise Clause Cases

It is now April 2021. I have lost count of how many times the Ninth Circuit has disregarded the Supreme Court’s COVID-19 Free Exercise Clause cases. (Of course, all from the shadow docket). I won’t even bother discussing the majority opinion in Tandon v. Newsom. Judge Bumatay’s dissent is all you need to read:

The instructions provided by the Court are clear and, by now, redundant. First, regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny. Roman Catholic Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free Exercise Clause merely by permitting some secular businesses to languish in disfavored status alongside religious activity. Id. Second, the fact that a restriction is itself phrased without reference to religion is not dispositive. See Gateway City Church, 2021 WL 753575, at *1. So long as some comparable secular activities are less burdened than religious activity, strict scrutiny applies. Third, businesses are analogous comparators to religious practice in the pandemic context. Roman Catholic Diocese.

The first and third elements are the most important.

Next stop, an application for an injunction at the Supreme Court. This case involves in-home bible study. But it also involves singing. Let’s see what Justices Kavanaugh and Barrett do here. In any event, Governor Newsom will likely play a game of whac-a-mole and rescind the regulation to frustrate appellate review.

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Ninth Circuit holds there is no right to bear arms


unconcealed-handgun-Michael-Tefft-Flickr

The en banc Ninth Circuit last week held that the Second Amendment does not extend to open public firearm carriage. The new in Young v. State of Hawaii complements the Circuit’s en banc from five years earlier, Peruta v. San Diego, which held that concealed carry is outside the Second Amendment. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.”

By statute, Hawaii has a restrictive “may issue” carry licensing system. If an applicant proves “sufficient” “urgency or need,” then a police chief “may” issue a permit. In practice, Hawaii is “never issue.” Carry permits are issued to security guards for use while on duty, and never to private citizens.

George Mocsary (U. Wyoming Law) and I examine the decision in a new article, Errors of Omission: Words Missing from the Ninth Circuit’s Young v. State of Hawaii. We argue that when the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. While carrying defensive arms may be regulated, it may not be prohibited. Below are some arguments from the article.

Supreme Court opinions

Young avoids quoting the language from the Supreme Court’s District of Columbia v. Heller that is directly on point:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis added).

The exceptions prove the rules stated in Heller: ordinary Americans (not just the militia) have Second Amendment rights, but felons and the mentally ill can be excluded from the right. Firearm commerce is necessary to the exercise of Second Amendment rights, but the government may impose conditions and qualifications on commercial vendors. As for carrying, “the full scope of the Second Amendment” includes “the carrying of firearms” in most places, but not “sensitive places.”

Rather than addressing the above language, Young misleadingly says that Heller authorized “bans on possession in sensitive places.” Heller‘s actual words about “carrying firearms” never appear in Young.

Young three times quotes the Supreme Court’s 1897 Robertson v. Baldwin for the proposition that the Second Amendment right was “inherited from our English ancestors.” Yet Young ignores what Robertson said about the scope of the Second Amendment right, on the same page from which Young quotes. According to Robertson, all rights have implicit limits derived from English law.

Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion. . . .

The obvious implication an implicit Second Amendment exception that the right to keep and bear arms “is not infringed by laws prohibiting the carrying of concealed weapons” is that laws prohibiting open carry do infringe the right.

Also missing from Young is what the Supreme Court said about the right to carry in 1857’s Dred Scott v. Sandford. Young cites Dred Scott while observing that the early Supreme Court rarely exercised its power of judicial review of federal statutes. Yet Young neglects to mention that one of Chief Justice Taney’s reasons for holding that free blacks were not citizens was that if they were,  they would have the right to “keep and carry arms wherever they went.”

English legal history

Young‘s lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.

The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.

According to the Ninth Circuit, the 1615 King’s Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public “notwithstanding he doth not break the peace.” Justice Croke’s seriatem opinion, however, reads

[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King’s people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).

Justice Houghton’s opinion adds that the sheriff may arrest someone, “upon suspition.”

By omitting “in his presence,” Young turns Chune‘s actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).

Blunderbuss pistol, similar to the gun in Sir John Knight’s Case.

The leading case on the Statute of Northampton was Sir John Knight’s Case, from 1686. Sir John Knight was a Protestant member of the Church of England and loved doing what he could to assist enforcement of the statutes that outlawed Catholic religious practice. After he helped break up a secret Catholic mass, some Catholics beat him up, and on other occasion assaulted a poor elderly woman who would not reveal Knight’s location. For defense, Knight carried a blunderbuss when he went to Protestant church one Sunday. King James II was a Catholic, and he personally ordered the Attorney General to prosecute Knight for violating the Statute of Northampton.

As trial, the Chief Justice of the King’s Bench observed that the Statute of Northampton had “almost gone in desuetudinem.” Or in English, desuetude. That is, the law had long been unenforced and ignored–similar to the old laws in several states against certain sex acts that were discussed by the U.S. Supreme Court in Lawrence v. Texas; they were unenforced for so long that the Court found them legally unenforceable. The Chief Justice continued: “yet where the crime shall appear to be malo animo, it will come within the Act” Malo animo means “with evil intent; with malice.” (Black’s Law Dict. 2014).

The Ninth Circuit describes another statement by the Chief Justice, as if it contradicted what the Chief Justice said above: “According to another reporter, the Chief Justice of the King’s Bench opined that the meaning of the Statute of Northampton was to punish those who go armed.” On the cited page of English Reports:

The Chief Justice also said, the meaning of the statute of 2 Edw. 3, c. 3 [Northampton], was to punish people who go armed to terrify the King’s subjects. It is likewise a great offence at the common law, as if the King were not able or willing to protect his subjects; and therefore this Act is but an affirmance of that law.

The Ninth Circuit said “go armed,” but the King’s Bench said “go armed to terrify the King’s subjects.” The jury acquitted Knight.

The case reports are plain, but the Young majority muddles them to reach the conclusion that the case provides no clear precedent: “We cannot resolve this dispute in the original sources, much less in the academic literature.”

The Young majority speculates that Knight might have been “acquitted by virtue of his aristocratic status.”For the possibility, Young cites a law review article claiming that aristocrats were “the one group expressly exempted from the Statute of Northampton.” To see whether this is true, one need only read the Statute: “Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants…” Aristocrats were expressly not exempted. Moreover, the case reports show that Knight’s lawyer had argued, “This statute was made to prevent the people’s being oppressed by great men; but this is a private matter, and not within the statute.”

William Hawkins’ 1714 A Treatise of the Pleas of the Crown was very influential on both sides of the Atlantic. The Young majority writes:

Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. “[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault.”

But the Ninth Circuit omits what “such Armour” was. Hawkins was referring to the public carrying of “dangerous and unusual Weapons”—and not to common arms. (Heller adopted the common law rule against carrying “dangerous and unusual Weapons” and turned it into the principle that “dangerous and unusual weapons” are not protected by the Second Amendment. Under Heller, handguns are necessarily not considered “dangerous and unusual,” because they are protected by the Second Amendment.)

Some American colonies and States enacted statutes or prosecuted common law offenses against “offensively” carrying arms “to the terror of the people.” Young argues that these too were treated as comprehensive bans on carrying. To test whether this is true, consider the opinion in the leading early case on the subject, North Carolina’s 1843 State v. Huntley.

According to Young, the Statute of Northampton was enacted verbatim by the North Carolina legislature in 1792. “Ironically, notwithstanding its recent independence, North Carolina did not even remove the references to the king,” writes the Ninth Circuit. Young cites to “1792 N.C. Laws 60, 61 ch. 3.” The lengthier cite would be François-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina 60–61 (1792). As the State of North Carolina later officially declared, the book “was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State.” Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).

According to the Ninth Circuit:

In 1836, the North Carolina legislature explicitly repealed “all the statutes of England or Great Britain” in use in the state…which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein. State v. Huntly, 25 N.C. 418, 420–21 (1843)….[T]he court concluded that the statute’s prohibitions “[had] been always an offen[s]e at common law.”

More precisely, the North Carolina Supreme Court said there was no “statute” to uphold. In the words of the Huntly court:

The [defendant’s] argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here.

The North Carolina court said that the Statute of Northampton was just an expression of a common law rule against “riding or going about armed with unusual and dangerous weapons, to the terror of the people.”

According to the indictment—which Huntly had argued did not constitute a crime because the Statute of Northampton was not in effect in North Carolina—Huntley had armed himself “with pistols, guns, knives and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night,” to the citizens of Anson, N.C., in town and on the highway, and did “openly and publicly declare a purpose and intent” “to beat, wound, kill and murder” James H. Ratcliff “by which said arming, exposure, exhibition and declarations . . . divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.”

Huntly agreed with “the Chief Justice in Sir John Knight’s case, that the statute of Northampton was made in affirmance of the common law.” The Huntly court then delivered a detailed exposition of what exactly the common law offense was:

It has been remarked, that a double-barrelled gun, or any other gun, cannot in this country come under the description of “unusual weapons,” for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an “unusual weapon,” wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.–But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement [a legal term of art for any lawful activity]–the citizen is at perfect liberty to carry his gun. It is the wicked purpose–and the mischievous result–which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.

Although the Huntly court did not like the idea of routine gun carrying, it recognized that peaceable carrying for any purpose was lawful. Despite devoting 60 pages to legal history and despite citing Huntly, the Ninth Circuit does not mention the above paragraph, which directly addresses the scope of the common law offense of carrying dangerous or unusual arms to the terror of the people.

The Ninth Circuit tells a long legal history built on inferences about what the Statute of Northampton must have meant in America. Yet the court omitted the paragraph from the state supreme court opinion that authoritatively describes what Northampton’s principles actually did mean in America.

The majority in Young v. State of Hawaii claims that total prohibition of the right to bear a handgun is consistent with “overwhelming” American legal history. The claim is refuted by the very sources on which the majority relies, once their full text is brought to light.

This article is co-authored by George Mocsary, professor of law at the University of Wyoming College of Law.

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Ninth Circuit holds there is no right to bear arms


unconcealed-handgun-Michael-Tefft-Flickr

The en banc Ninth Circuit last week held that the Second Amendment does not extend to open public firearm carriage. The new in Young v. State of Hawaii complements the Circuit’s en banc from five years earlier, Peruta v. San Diego, which held that concealed carry is outside the Second Amendment. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.”

By statute, Hawaii has a restrictive “may issue” carry licensing system. If an applicant proves “sufficient” “urgency or need,” then a police chief “may” issue a permit. In practice, Hawaii is “never issue.” Carry permits are issued to security guards for use while on duty, and never to private citizens.

George Mocsary (U. Wyoming Law) and I examine the decision in a new article, Errors of Omission: Words Missing from the Ninth Circuit’s Young v. State of Hawaii. We argue that when the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. While carrying defensive arms may be regulated, it may not be prohibited. Below are some arguments from the article.

Supreme Court opinions

Young avoids quoting the language from the Supreme Court’s District of Columbia v. Heller that is directly on point:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis added).

The exceptions prove the rules stated in Heller: ordinary Americans (not just the militia) have Second Amendment rights, but felons and the mentally ill can be excluded from the right. Firearm commerce is necessary to the exercise of Second Amendment rights, but the government may impose conditions and qualifications on commercial vendors. As for carrying, “the full scope of the Second Amendment” includes “the carrying of firearms” in most places, but not “sensitive places.”

Rather than addressing the above language, Young misleadingly says that Heller authorized “bans on possession in sensitive places.” Heller‘s actual words about “carrying firearms” never appear in Young.

Young three times quotes the Supreme Court’s 1897 Robertson v. Baldwin for the proposition that the Second Amendment right was “inherited from our English ancestors.” Yet Young ignores what Robertson said about the scope of the Second Amendment right, on the same page from which Young quotes. According to Robertson, all rights have implicit limits derived from English law.

Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion. . . .

The obvious implication an implicit Second Amendment exception that the right to keep and bear arms “is not infringed by laws prohibiting the carrying of concealed weapons” is that laws prohibiting open carry do infringe the right.

Also missing from Young is what the Supreme Court said about the right to carry in 1857’s Dred Scott v. Sandford. Young cites Dred Scott while observing that the early Supreme Court rarely exercised its power of judicial review of federal statutes. Yet Young neglects to mention that one of Chief Justice Taney’s reasons for holding that free blacks were not citizens was that if they were,  they would have the right to “keep and carry arms wherever they went.”

English legal history

Young‘s lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.

The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.

According to the Ninth Circuit, the 1615 King’s Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public “notwithstanding he doth not break the peace.” Justice Croke’s seriatem opinion, however, reads

[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King’s people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).

Justice Houghton’s opinion adds that the sheriff may arrest someone, “upon suspition.”

By omitting “in his presence,” Young turns Chune‘s actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).

Blunderbuss pistol, similar to the gun in Sir John Knight’s Case.

The leading case on the Statute of Northampton was Sir John Knight’s Case, from 1686. Sir John Knight was a Protestant member of the Church of England and loved doing what he could to assist enforcement of the statutes that outlawed Catholic religious practice. After he helped break up a secret Catholic mass, some Catholics beat him up, and on other occasion assaulted a poor elderly woman who would not reveal Knight’s location. For defense, Knight carried a blunderbuss when he went to Protestant church one Sunday. King James II was a Catholic, and he personally ordered the Attorney General to prosecute Knight for violating the Statute of Northampton.

As trial, the Chief Justice of the King’s Bench observed that the Statute of Northampton had “almost gone in desuetudinem.” Or in English, desuetude. That is, the law had long been unenforced and ignored–similar to the old laws in several states against certain sex acts that were discussed by the U.S. Supreme Court in Lawrence v. Texas; they were unenforced for so long that the Court found them legally unenforceable. The Chief Justice continued: “yet where the crime shall appear to be malo animo, it will come within the Act” Malo animo means “with evil intent; with malice.” (Black’s Law Dict. 2014).

The Ninth Circuit describes another statement by the Chief Justice, as if it contradicted what the Chief Justice said above: “According to another reporter, the Chief Justice of the King’s Bench opined that the meaning of the Statute of Northampton was to punish those who go armed.” On the cited page of English Reports:

The Chief Justice also said, the meaning of the statute of 2 Edw. 3, c. 3 [Northampton], was to punish people who go armed to terrify the King’s subjects. It is likewise a great offence at the common law, as if the King were not able or willing to protect his subjects; and therefore this Act is but an affirmance of that law.

The Ninth Circuit said “go armed,” but the King’s Bench said “go armed to terrify the King’s subjects.” The jury acquitted Knight.

The case reports are plain, but the Young majority muddles them to reach the conclusion that the case provides no clear precedent: “We cannot resolve this dispute in the original sources, much less in the academic literature.”

The Young majority speculates that Knight might have been “acquitted by virtue of his aristocratic status.”For the possibility, Young cites a law review article claiming that aristocrats were “the one group expressly exempted from the Statute of Northampton.” To see whether this is true, one need only read the Statute: “Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants…” Aristocrats were expressly not exempted. Moreover, the case reports show that Knight’s lawyer had argued, “This statute was made to prevent the people’s being oppressed by great men; but this is a private matter, and not within the statute.”

William Hawkins’ 1714 A Treatise of the Pleas of the Crown was very influential on both sides of the Atlantic. The Young majority writes:

Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. “[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault.”

But the Ninth Circuit omits what “such Armour” was. Hawkins was referring to the public carrying of “dangerous and unusual Weapons”—and not to common arms. (Heller adopted the common law rule against carrying “dangerous and unusual Weapons” and turned it into the principle that “dangerous and unusual weapons” are not protected by the Second Amendment. Under Heller, handguns are necessarily not considered “dangerous and unusual,” because they are protected by the Second Amendment.)

Some American colonies and States enacted statutes or prosecuted common law offenses against “offensively” carrying arms “to the terror of the people.” Young argues that these too were treated as comprehensive bans on carrying. To test whether this is true, consider the opinion in the leading early case on the subject, North Carolina’s 1843 State v. Huntley.

According to Young, the Statute of Northampton was enacted verbatim by the North Carolina legislature in 1792. “Ironically, notwithstanding its recent independence, North Carolina did not even remove the references to the king,” writes the Ninth Circuit. Young cites to “1792 N.C. Laws 60, 61 ch. 3.” The lengthier cite would be François-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina 60–61 (1792). As the State of North Carolina later officially declared, the book “was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State.” Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).

According to the Ninth Circuit:

In 1836, the North Carolina legislature explicitly repealed “all the statutes of England or Great Britain” in use in the state…which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein. State v. Huntly, 25 N.C. 418, 420–21 (1843)….[T]he court concluded that the statute’s prohibitions “[had] been always an offen[s]e at common law.”

More precisely, the North Carolina Supreme Court said there was no “statute” to uphold. In the words of the Huntly court:

The [defendant’s] argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here.

The North Carolina court said that the Statute of Northampton was just an expression of a common law rule against “riding or going about armed with unusual and dangerous weapons, to the terror of the people.”

According to the indictment—which Huntly had argued did not constitute a crime because the Statute of Northampton was not in effect in North Carolina—Huntley had armed himself “with pistols, guns, knives and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night,” to the citizens of Anson, N.C., in town and on the highway, and did “openly and publicly declare a purpose and intent” “to beat, wound, kill and murder” James H. Ratcliff “by which said arming, exposure, exhibition and declarations . . . divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.”

Huntly agreed with “the Chief Justice in Sir John Knight’s case, that the statute of Northampton was made in affirmance of the common law.” The Huntly court then delivered a detailed exposition of what exactly the common law offense was:

It has been remarked, that a double-barrelled gun, or any other gun, cannot in this country come under the description of “unusual weapons,” for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an “unusual weapon,” wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.–But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement [a legal term of art for any lawful activity]–the citizen is at perfect liberty to carry his gun. It is the wicked purpose–and the mischievous result–which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.

Although the Huntly court did not like the idea of routine gun carrying, it recognized that peaceable carrying for any purpose was lawful. Despite devoting 60 pages to legal history and despite citing Huntly, the Ninth Circuit does not mention the above paragraph, which directly addresses the scope of the common law offense of carrying dangerous or unusual arms to the terror of the people.

The Ninth Circuit tells a long legal history built on inferences about what the Statute of Northampton must have meant in America. Yet the court omitted the paragraph from the state supreme court opinion that authoritatively describes what Northampton’s principles actually did mean in America.

The majority in Young v. State of Hawaii claims that total prohibition of the right to bear a handgun is consistent with “overwhelming” American legal history. The claim is refuted by the very sources on which the majority relies, once their full text is brought to light.

This article is co-authored by George Mocsary, professor of law at the University of Wyoming College of Law.

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