Tag: in-the-news

Ye—better known as Kanye West—is one of the great artists at work in contemporary America. But as brilliant as he is in a recording studio or on a fashion runway, he’s equally prone to making outrageous, often-cryptic political statements—not to mention weird threats to ex wife Kim Kardashian’s former boyfriend Pete Davidson. He has very publicly struggled with mental health issues even as he continues to produce highly praised music and clothing.

In 2018, he suggested that 400 years of African American slavery “sounds like a choice,” and just this week his declaration that he was about to go “death con 3 on JEWISH PEOPLE” led to his Twitter and Instagram accounts being locked. In a recent, wide-ranging interview with Fox News’ Tucker Carlson, Ye was personable, loquacious, and engaging, even as he suggested the fat acceptance movement was a type of “genocide of the Black race” and defended wearing a “White Lives Matter” shirt at his latest fashion show. He also talked about ideological orthodoxy in the entertainment industry, saying that it “drove me crazy not to be able to say I liked Trump.”

Is Ye a victim of a woke culture that he says attacks anyone “presenting new ideas?” Or is he the latest in a line of major artists—such as Picasso, T.S. Eliot, Alice Walker—whose personal lives or politics are beyond the pale? Should audiences separate artists from their art or should audiences dismiss them if they hold repellent views?

Reason‘s Nick Gillespie and Natalie Dowzicky discuss all this and more with Commentary and New York Sun columnist Eli Lake, host of The Re-Education podcast and a Ye superfan.

Photo: Illustration: Lex Villena; Cosmopolitan UK, Gage Skidmore

The post Should Anyone Be Offended by Ye? Live with Eli Lake appeared first on Reason.com.

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The rampant cable news attention seeking and kayfabe committee hearings that characterize politics today have an ideologically diverse set of pundits yearning for a return of the “smoke-filled room.” There, the argument goes, politicians could hash out policy in private, frank conversations away from all the bad incentives created by TV cameras and records requests.

“Sometimes,” wrote Jonathan Rauch in 2015, “the only thing wrong with smoke-filled rooms is the smoke.”

The intensifying scandal surrounding three Los Angeles City councilmembers caught on a surreptitious recording making racist remarks during one such “frank” conversation shows how unwarranted that romance for smoke-filled rooms really is.

On Sunday, the Los Angeles Times published a leaked October 2021 conversation between Councilmembers Nury Martinez, Kevin De León, Gil Cedillo, and labor leader Ron Herrera about redrawing city council district boundaries.

In it, Martinez is heard describing fellow Councilmember Mike Bonin as a “little bitch” while using a Spanish term to describe his black child as a monkey in need of a disciplinary “beatdown.” She also goes after Los Angeles County District Attorney George Gascón, saying “fuck that guy…he’s with the blacks.” De León accused Bonin of using his child like an accessory—comparing him to Martinez’s Louis Vuitton purse.

The racist nature of the remarks has led to widespread calls for the three councilmembers to resign. On Tuesday, President Joe Biden, via White House Press Secretary Karine Jean-Pierre, said all three needed to go. On Wednesday, California Attorney General Rob Bonta announced a state investigation into the redistricting process.

Last night, Martinez bowed to the pressure and announced that she would resign. De León and Cedillo are still on the council.

One question raised by this scandal is whether Los Angeles residents and voters are better off knowing the candid thoughts of their representatives.

The people calling for the councilmembers to resign certainly think this is important and useful knowledge. For them, it’s determinative of whether they think a public figure can reliably serve in their role or not.

But for the smoke-filled room supporters on the left, right, and center, our ability to peer into backroom deals between politicians is making our politics worse, not better.

“Lying, cheating, and stealing are certainly more difficult when the world is watching. But so are dickering, floating trial balloons, being candid, and working out complex deals,” said Rauch in his 2015 book Political Realism, arguing for a return to a more transactional politics. Closed-door negotiations, he argued, give politicians “more freedom to explore policy options and multidimensional, integrative solutions.”

Blogger Matt Yglesias’ 2016 essay “Against Transparency” went even further with this idea by arguing against “input disclosure”—a wonky term that refers to transparency around the political back-and-forth that produces policy.

“The fundamental problem with input disclosure is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty,” said Yglesias. “Rather than saying what they mean, participants will be saying what they want to be seen as saying. Actual decision-making will take on the flavor of a stage-managed press conference, where ideas are sanitized and no mistakes are confessed.”

So long as we still have output disclosure—i.e. transparency around the end policy produced by all that private politicking—voters can still make informed decisions about their government, says Yglesias.

It’s an idea that has proven pretty sticky. People have used some version of it to argue for removing cameras from congressional committee hearings or even ending presidential primaries.

The common thread of all these arguments is that politicians are made worse by having to do their business in public and remain appealing to voters at each step of the way. Better to have a backroom dealer subject to the occasional election than a political performer who’s always on for the cameras, the thinking goes.

Revelations about how the three Los Angeles councilmembers behave when they think no one is listening suggest that cameras aren’t as damaging as we might think, and that backroom deals can be pretty dirty indeed.

There is, after all, a heavily public component of the Los Angeles redistricting process. A 21-member redistricting commission made up of members of the public holds hearings, logs their ex parte negotiations, and ultimately draws up a recommended map for the city council to consider.

This isn’t an apolitical process, but its structure creates at least a stab at transparency and public spiritedness. The smoke-filled room advocates would seemingly argue that this is only making Los Angeles’ governance worse. Better to let professional politicians hash out redistricting largely in private, where they can candidly acknowledge political realities and cut deals.

We now have a great example of what that actually looks like. Freed from input disclosure, Martinez and her colleagues let fly all sorts of horrible and disparaging remarks about their colleagues and constituents while they tried to carve up the city council districts to suit their interests. It’s not a pretty thing to listen to. More to the point, I’m not sure what value it added to the redistricting process in L.A.—other than potential criminality.

Obviously, Yglesias and Rauch, and other smoke-filled room advocates, aren’t defending the comments made by L.A.’s embattled/disgraced councilmembers.

But it’s hard to see how a politics that involves more smoke-filled rooms and less public disclosure would guard against such ugliness. We can’t rely on anonymous whistleblowers making recordings of every racist, horse-trading conversation, after all.

The smoke-filled room defenders aren’t wrong that shining light on everything has its downsides. Purely performative politics produces plenty of its own problems.

Striking the right balance mostly seems to be a task for people who want the government to do a lot of things. The smaller and less impactful city hall is, the less we need to worry that it’s run by bad people.

Indeed, one idea floated in the wake of the council scandal is reducing councilmembers’ discretion over real estate development and contracting in their districts. That would lessen their incentive to fight over territory and voters. That would, in turn, potentially lead to less corruption, and more willing transparency.

It’s no surprise that past corruption is tied to power over enticements, usually land-use approvals, and perhaps even influencing over city contracts.

— Laura Friedman (@laurafriedman43) October 11, 2022

Until that happens, I’d argue we’re better off with a system that forces politicians to do their dirty work in public. Output disclosure isn’t enough.

“The theory says that sunshine is the best disinfectant, but people also need a dark room to sleep in at night if they’re going to function properly,” writes Yglesias. This week’s leaked audio reveals the room that L.A. politicians sleep in is pretty dark indeed.

The post L.A.'s Leaked City Council Tape Reminds Us Why 'Smoke-Filled Rooms' Are Bad appeared first on Reason.com.

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From Judge Dan Polster’s opinion today in Koe v. Univ. Hospitals Health Sys., Inc. (N.D. Ohio):

Plaintiff states that he was a resident physician in the Case Western Reserve University/University Hospitals Cleveland Medical Center residency program beginning in June 2019. He also states that he is a qualified individual with a disability as defined by the Americans with Disabilities Act ….

Plaintiff alleges that in the course of his residency, other residents and nursing staff repeatedly questioned Plaintiff regarding his health and the health of his family. During a year-end performance review, Plaintiff advised his program director that he believed this action constituted harassment on the basis of disability and created a hostile work environment, and he asked the program director to stop the behavior. Plaintiff contends that the program director failed to take corrective action. According to Plaintiff, during the next performance review, the program director advised Plaintiff that he must have an EAP (Employee Assistance Program) assessment but neglected to explain why. Plaintiff continued to reach out to the program director to inquire as to her rationale for mandating the assessment to no avail. Plaintiff contends that, fearing discharge, he reluctantly met with a University Hospitals clinician for the assessment and a follow-up assessment. Plaintiff alleges that after the assessment, he was forced, under verbal and written threat of discharge, to sign a “Compliance Contract” that conditioned Plaintiff’s continued employment on his submission to ongoing compulsory counseling. He claims that Defendants subjected him to ongoing discriminatory and retaliatory harassment.

Plaintiff alleges that Defendants’ behavior constituted a violation of Title VII of the Civil Rights Act of 1964; Title I of the ADA; and Title II of the Genetic Information Nondiscrimination Act of 2008….

Plaintiff moves for leave to file this action anonymously. In support, he alleges that he is compelled to disclose information of the “utmost intimacy,” including “conversations pertaining to counseling sessions.” He alleges that medical decisions relating to his health care and treatment are sensitive and personal matters warranting the use of a pseudonym….

“It is the exceptional case in which a plaintiff may proceed under a fictitious name.” …

In his motion to proceed anonymously, Plaintiff argues that the pursuit of his claims would compel him to disclose information “of the utmost intimacy,” such as conversations pertaining to counseling sessions and medical decisions relating to his health care and treatment. Plaintiff has failed, however, to identify any exceptional circumstances distinguishing his case from other cases brought by plaintiffs alleging disability discrimination who may also have medical records concerning mental health treatment. See Doe v. Carson (6th Cir. 2020) (Doe’s disability discrimination case did not present exceptional circumstances distinguishing her case from other cases brought by plaintiffs claiming disability discrimination who suffer from mental illness sufficient to excuse her from Rule 10(a)’s requirement that a plaintiff’s complaint “must name all the parties”). Nor has Plaintiff identified any specific harm arising from disclosure of his identity. Moreover, Plaintiff’s complaint includes many factual allegations that would make identification of Plaintiff relatively simple, including the names of the program director who ordered the EAP assessment and the clinician who conducted the assessment, as well as information concerning Plaintiff’s medical license, specialty, and dates of employment.

Having considered the relevant factors, the Court finds that Plaintiff’s privacy interests do not substantially outweigh the presumption of open judicial proceedings sufficient to warrant anonymity. Plaintiff’s motion to proceed anonymously is therefore denied, and the action is dismissed for lack of jurisdiction…. If Plaintiff wishes to continue this case, he must within fourteen (14) days of the entry of this order: (1) file a motion to reopen the case; and (2) file an amended complaint identifying himself.

Congratulations to David A. Campbell and Donald G. Slezak (Lewis Brisbois Bisgaard & Smith, LLP), who represent defendants.

The post No Pseudonymity in Doctor's Disability Law Case appeared first on Reason.com.

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From Amor v. Conover, decided yesterday by Judge John Gallagher (E.D. Pa.):

[Plaintiffs’] allegations arise following Defendant’s participation in the Pittsburgh Renaissance Festival as a paying guest. Plaintiffs Dr. Amor and Ms. Amor are both performance directors at the Pittsburgh Renaissance Festival. In addition to his Renaissance Festival involvement, Plaintiff Dr. Amor is a dentist with a business practice located in Pennsylvania.

Defendant’s statements allege that Plaintiffs refused to take seriously allegations that renaissance festival cast members/employees under their supervision committed sexual misconduct against other renaissance festival cast members/employees, some of whom were minors under the age of 18 at the time of the alleged abuse. According to Plaintiffs’ Complaint, Defendant’s statements further allege Plaintiffs “retaliated against said rape and/or sexual assault victims by, amongst other things, publicly humiliating them, calling them crazy, refusing to rehire them, and/or terminating them from employment.” …

Plaintiffs sued for libel, and the question before the court at this point was solely whether they are limited-purpose public figures and must therefore prove that the defendant knew her statements were false (or likely false), rather than just that the defendant was negligent as to their falsehood:

“The question of whether a plaintiff is a public or private figure is a question of law to be decided by the Court.” … “In a defamation action, the designation of an individual as a limited purpose public figure has significant ramifications: whereas a private individual need only prove negligence on the part of the defendant to prevail, a limited purpose public figure must establish actual malice by the defendant.” This distinction between private individuals and limited purpose public figures is justified on two grounds: “First is the rationale of self-help,” as public figures have “greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” “Second, and perhaps more important, is the notion of assumption of the risk. Public officials and public figures in some sense voluntarily put themselves in a position of greater public scrutiny and thus assume the risk that disparaging remarks will be negligently made about them.”

The Third Circuit has set forth a two-part inquiry for determining whether a defamation plaintiff is a limited purpose public figure: “The court must consider (1) whether the alleged defamation involves a public controversy, and (2) the nature and extent of plaintiff’s involvement in that controversy.”

Courts in our circuit have applied this standard to hold allegations of sexual misconduct constitute a public controversy “even when the controversy is ‘relevant to only residents of the local community.'” … Similarly, in Mzamane v. Winfrey (E.D. Pa. 2010), the court held that “[t]he safety and well-being of seventh and eight grade students in receiving a quality education without being subjected to mistreatment is a matter of legitimate public concern.” While the allegedly defamatory statements in Mzamane concerned a school headmistress’s failure to protect minor students from sexual abuse at the Oprah Winfrey Leadership Academy for Girls (“OWLAG”), the court did not consider Ms. Winfrey’s celebrity in making its public controversy determination. The court held that “the question of what the administration of the school knew at the time or if they failed to protect children against abusive treatment … was ripe for public comment, regardless of Winfrey’s involvement in the case.” …

The public figure inquiry is not concerned with the intensity of the public attention garnered by an issue. Instead, it focuses on whether the matter is one that is the subject of public comment and affects more than the immediate participants regardless of the degree of preeminence the issue generates.

Here, the controversy at issue can be characterized as such: broadly, allegations of sexual misconduct in the workplace, and specifically, allegations of sexual misconduct against minors, allegedly perpetrated by Pittsburgh Renaissance Festival employee(s). This is a public controversy. Broadly, the issue of sexual misconduct in the workplace is … “one of the most troubling issues of our time” and therefore “surely falls within the ambit of public controversy.” Specifically, allegations of sexual misconduct against minors perpetrated by a renaissance festival employee(s) is a matter of legitimate public concern. Whether renaissance festival cast members/employees who work in a public facing event and performance, which is often attended by families and minor children, have committed sexual misconduct against minors is an issue that affects not just the employees who are the subject of the allegations, but the public who attends the event. Because these allegations of sexual misconduct in a public workplace are relevant to members of the local community, this Court finds that a public controversy exists.

Second, the Court must evaluate the nature and extent of Plaintiffs’ involvement in the controversy. In analyzing this prong, this Court evaluates the dual considerations behind the distinction between private individuals and limited purpose public figures: the “rationale of self-help” and, more importantly, “the notion of assumption of the risk.” … Plaintiffs’ considerable social media following, along with Plaintiffs’ own assertion that Dr. Amor has “a high profile on numerous Internet sites,” militates toward a finding that Plaintiffs have at least somewhat of a “greater access to channels of effective communication” than purely private individuals.

The Court now considers the more significant consideration of whether the “Plaintiff voluntarily assumed the risk of attracting public attention.” In Chuy v. Philadelphia Eagles Football Club, the Third Circuit held that by assuming the role of a professional football player, Don Chuy of the Philadelphia Eagles “was a limited purpose public figure with respect to statements regarding the effect of his medical condition on his ability to play football.” Similarly, the court in Mzamane held that by accepting the role of headmistress at a unique and innovative private school, the plaintiff qualified as a limited purpose public figure “with respect to statements involving the administration [of the school] as it relates to the safety and treatment of the students.” The plaintiff’s “status as Headmistress invited public comment about her performance in executing her responsibilities for overseeing the development and well-being of the students, whether good or bad.” The court held that, “[h]aving voluntarily joined a novel and innovative educational institution which was bound to attract public attention … Plaintiff became limited public figure under the First Amendment.”

Plaintiff Dr. Amor invited public comment about his performance in executing his responsibilities as Performance Director of an event that invites public attention and attendance, the renaissance festival. Dr. Amor, by his own admission, “has a high profile on numerous Internet sites” in part due to his role as Performance Director of the Pittsburgh Renaissance Festival and his involvement in other renaissance faires. Other considerations support a finding that Plaintiffs have a “high profile.” Dr. Amor and Ms. Amor publicly portray the “King” and “Queen” and the Pittsburgh and West Virginia Renaissance Festivals and have marched in the local Pittsburgh news station’s Christmas/Holiday Parade. The Amors have been featured in the national “Renaissance Magazine” and attract significant attention on social media related to their involvement in renaissance festivals across the region. Plaintiff Ms. Amor is also a Performance Director at the Pittsburgh Renaissance Festival, and consistently appears with Dr. Amor at renaissance festivals and related events.

By assuming high-profile leadership positions for a public event that gave them authority to direct and lead cast members, as well as to exert influence in personnel decisions, Plaintiffs assumed the risk of public comment about their performance and execution of these responsibilities. Allegations that Plaintiffs failed to take seriously claims that cast members/employees under their supervision committed sexual misconduct are precisely the type of public comment about their performance that Plaintiffs invited by assuming these roles. The Court therefore finds that Plaintiffs’ are limited purpose public figures for the purposes of this action.

The post Renaissance Faire King & Queen are Limited-Purpose Publick Figures appeared first on Reason.com.

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From U.S. v. Price, decided yesterday by Judge Joseph R. Goodwin (S.D. W. Va.):

Section 922(k) states, in pertinent part,

It shall be unlawful for any person knowingly to transport … in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess … any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce….

18 U.S.C. § 922(k).

The threshold question [under Bruen] is whether Section 922(k) prohibits conduct that is protected by the plain text of the Second Amendment. The Government argues that it does not because the requirement that firearms bear serial numbers is, in its view, a “commercial regulation” that does not “infringe” on one’s right to keep and bear arms. The Government’s argument relies mainly on its contention that no relevant Supreme Court precedent casts “doubt on laws imposing conditions and qualifications on the commercial sale of arms.” In his concurring opinion in Bruen, Justice Kavanaugh explained that the Court did not intend “to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” This idea is rooted in Heller and McDonald—precedent that Bruen reaffirmed—which also left commercial regulations untouched. This makes sense because commercial regulations that apply only to manufacturers and sellers do not implicate an individual’s right of possession.

Importantly though, the statute at issue here is not a commercial regulation. Rather, 18 U.S.C. § 923(i) is the commercial regulation that requires manufacturers to place serial numbers on firearms: “Licensed importers and manufacturers shall identify by means of a serial number engraved or cast on the receiver or frame of the weapon … each firearm imported or manufactured by such importer or manufacturer.” Other commercial regulations may well require that any firearm sale only involve firearms bearing a manufacturer’s serial number. Section 922(k) goes farther. It criminalizes the mere possession of a firearm after a serial number is removed, obliterated, or altered in any way, whether or not the firearm is then placed into commerce.

Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government’s argument that Section 922(k) does not amount to an “infringement” on the law-abiding citizen’s Second Amendment right, the practical application is that while the law-abiding citizen’s possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one’s right to possess a firearm.

Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father’s memory. As it stands, Section 922(k) also makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite the fact that she was not the person who removed the serial number. These scenarios make clear that Section 922(k) is far more than the mere commercial regulation the Government claims it to be. Rather, it is a blatant prohibition on possession. The conduct prohibited by Section 922(k) falls squarely within the Second Amendment’s plain text….

Having found that Section 922(k) does implicate conduct that is protected by the Second Amendment, the statute is presumptively unconstitutional unless the Government can show that “it is consistent with the Nation’s historical tradition of firearm regulation.” This analysis is constrained by the Supreme Court’s definition of “historical tradition” as the time of the founding and ratification of the Second Amendment in 1791. According to Bruen, “[h]istorical evidence that long predates [the ratification] … may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years.”  Likewise, the Court cautions that lower courts “must also guard against giving postenactment history more weight than it can rightly bear,” by only considering those postenactment sources that help “determine the public understanding of [the Second Amendment]” at the time of its ratification.

Taking those instructions together, the crux of the historical inquiry is to determine the understanding of the right at the time it was enshrined in the Constitution. Any modern regulation that does not comport with the historical understanding of the right is to be deemed unconstitutional, regardless of how desirable or important that regulation may be in our modern society….

Prior to Bruen, courts considering the constitutionality of Section 922(k) found that the requirement that a serial number not be removed was a minimal burden on lawful gun owners compared to the value serial numbers provide to society. Specifically, by requiring serial numbers and “channeling the sales of firearms through federally licensed dealers,” who keep a record of those sales, the Gun Control Act on the whole helps to keep firearms out of the hands of “individuals whose possession of them would be contrary to the public interest.” And, the Third Circuit explained, “It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible.” Certainly, the usefulness of serial numbers in solving gun crimes makes Section 922(k) desirable for our society. But the Supreme Court no longer permits such an analysis.

Under Bruen, I am limited to considering whether Section 922(k) is “consistent with the Nation’s historical tradition of firearm regulation.” Where the regulation confronts a longstanding “perceived societal problem” that the founders could have addressed but either did not address or addressed through “materially different means,” the regulation is unconstitutional.  On the other hand, where the societal problem addressed by the regulation is “unprecedented,” such that it would have been “unimaginable at the founding” or is based on “dramatic technological changes,” the approach may be more nuanced.  In those instances, the Government may point to an analogous regulation in the relevant historical tradition as evidence that the modern regulation is constitutional. In either case, the burden is on the Government to establish the constitutionality of Section 922(k)….

Serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968…. Notably, these prohibitions were only on transporting, shipping, or receiving firearms—that is to say, when the firearms were in the stream of commerce.

Even in 1968 there was no prohibition on mere possession of a firearm that had the serial number altered or removed. In fact, it was not until the Crime Control Act of 1990 that Section 922 was amended to insert “or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” …

Given this history, the “societal problem[s]” addressed by Section 922(k) appear to be crime, including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791. And, insofar as the Gun Control Act was intended to keep firearms out of the hands of those who might commit crimes with them, there is evidence, as I discuss later, that the founders addressed that problem through materially different means. According to Bruen, that the societal problem addressed by Section 922(k) was likely in existence at the founding but not addressed by similar means “is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”

Even assuming the societal problem addressed by the regulation is “unprecedented,” such that it would have been “unimaginable at the founding” or is based on “dramatic technological changes,” it is the Government’s burden to show that there were analogous regulations at the time to support Section 922(k)’s constitutionality. In an attempt to meet its burden, the Government argues broadly that there is a historical tradition of “restricting the types of weapons that can be possessed,” and that “there is a general historical practice of imposing ‘conditions and qualifications on the commercial sale of arms.'” As I have already held, Section 922(k) is not a commercial regulation because it criminalizes possession even after a firearm is out of the stream of commerce. Evidence of historical commercial regulations is therefore inapposite.

As for its argument that restrictions on certain types of weapons are constitutional, the Government starts and stops by explaining that the Court in Heller acknowledged three permissible limits: the firearms must be “bearable arms” to receive protection, the arms must not be “dangerous or unusual weapons,” and the arms must be kinds in “common use.” The Government makes no attempt to explain how any of these limits are analogous to Section 922(k)’s prohibition on possessing a firearm without a serial number, and I find no apparent analogue….

[Among other things,] I can find no authority for the idea that a firearm without a serial number would meet the historical definition of a dangerous or unusual firearm. In fact, as the Government points out, the commercial requirement that a serial number be placed on a firearm “does not impair the use or functioning of a weapon in any way.” …

A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time. While I recognize there is an argument, not made by the Government here, that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering. And the founders addressed the “societal problem” of non-law-abiding citizens possessing firearms through “materially different means”—felon disarmament laws like Section 922(g)(1). Under Bruen, this is “evidence that [the] modern regulation is unconstitutional.”

I appreciate the court’s careful analysis, and I’m glad it takes Second Amendment rights seriously. But I think Bruen provides more room for regulations such as this, which have very little effect on people’s ability to keep and bear arms. This is particularly clear in footnote 9 to the majority’s opinion, which upheld licensing requirements for carrying guns:

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].”

Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion”—features that typify proper-cause standards like New York’s.

That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

Of course, licensing requirements do interfere in some measure with the right to carry guns: they impose at least some “wait times” and some “fees.” Nor did the Court suggest that there was a longstanding tradition or history supporting such licensing requirements.

Rather, the Court suggested that a modest burden, which does not “prevent” the exercise of the right, would be constitutional, at least so long as it serves the traditionally recognized government interest in “ensur[ing] … that those bearing arms … are … ‘law-abiding, responsible citizens.'” “[L]engthy wait times” would be unconstitutional, but modest ones would be fine. “[E]xorbitant fees” would be unconstitutional, but modest ones would be fine.

And this is reflected in the Court’s more general discussion. The Court distinguished some earlier, historically recognized, gun controls on the grounds that “[n]one of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime.” “[T]he burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York’s proper-cause standard.”

The Court also said that the Second Amendment inquiry must focus on “whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified,” and on “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” That too suggests that the magnitude of the burden matters.

Given that guns with serial numbers are indeed, as the court pointed out, just as effective at self-defense as guns without, the serial number requirement seems to me to be a much lighter burden than the burden of objective, easy-to-comply-with licensing requirements, which the Court in Burden endorsed. True, the serial number requirement does interfere with the privacy of gun transactions and gun ownership, and privacy hawks may be concerned about that. But of course the shall-issue laws upheld in Bruen also interfered with the privacy of gun carrying, since people would need to identify themselves to the government to get the license. (Note that Bruen held that carrying guns was just as protected as home ownership, so I don’t think the serial number requirement can be distinguished from the carry license requirements on the basis that the serial numbers must be present even on guns kept in the home.)

And though the serial number requirement isn’t directly “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens,'” it is designed to deter and more effectively punish criminal misuse of guns by non-law-abiding people, which of course is even more clearly outside the Second Amendment than is possession by such people. I expect the government to appeal, so it will be interesting to see what the Fourth Circuit says.

Congratulations to Lex A. Coleman of the West Virginia Public Defender’s Office, who prevailed on this issue.

The post Requirement of Serial Numbers on Guns Violates Second Amendment appeared first on Reason.com.

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On Tuesday, Michael McConnell and I published a piece in The Atlantic about the Supreme Court’s pending case of Moore v. Harper, currently headlined The Supreme Court Has A Perfectly Good Option in Its Most Divisive Case.

It begins:

Later this term, the Supreme Court will decide Moore v. Harper, a case that has been pitched as a seismic clash between two troubling positions. One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution. The Court should look beyond these unsupportable positions and take a commonsense middle ground. Fortunately, one is readily available: an approach that maintains the Constitution’s emphasis on state legislatures without divorcing them from their traditional constitutional constraints.

and continues:

Missing from the debate has been a key principle that points to a sensible middle ground: A state constitution may limit a legislature’s power over federal elections, but it may not give that power to somebody else. We need not an independent-state-legislature doctrine, but a constitutional-state-legislature doctrine.

and more specifically:

What does this principle mean for concrete cases?

It means that state constitutional provisions can restrain legislative districting, such as by limiting the use of partisan gerrymandering. The broad challenge to state constitutional law in Moore therefore should fail. But it also means that the North Carolina courts do not have independent constitutional power to adopt their own map.

There is much more at the link.

Now, if you agree with our core points (which would be great) there is much more to say about how to approach the remedy when a legislature draws a legally impermissible map. Some have pointed to a recent redistricting standoff in Ohio, others to the many decades in which the Minnesota legislature has apparently refused to draw maps, happy to let the courts do the hard work.

I think it might be premature to get into these weeds, and I certainly can’t speak for my co-author about any of this. But I thought I’d offer a few modest observations for now.

1. The piece notes that Congress retains power to solve standoffs over congressional redistricting. It is also worth mentioning that Congress has in fact enacted some legislation on this subject already, codified in 2 U.S.C. 2a through 2c. These statutes are somewhat old, and therefore somewhat complicated to apply today, but an amicus brief by Jonathan Mitchell and Adam Mortara argues that these statutory provisions could resolve Moore.
2. Additionally, there might be the possibility of state legislation that authorizes a fallback approach for unconstitutional redistricting. This possibility triggers another constitutional question. Some might see such legislation as simply an instance of the state legislature exercising its constitutional power. Others might see such legislation as subject to a sort of non-delegation doctrine. The Atlantic piece doesn’t explicitly address this question, and depending on the answer, one might resolve Moore by turning to various provisions of North Carolina law that the parties dispute.
3. In the absence of any specific legislative response, what to do when the enacted law tries to require something unconstitutional is a severability problem, something I’ve written about recently in Severability First Principles: when a legislative enactment is not the law because it is unconstitutional, what is the law instead? These questions can be intricate and technical in particular cases, but I am not convinced they are generally intractable.
4. For instance, the federal statutes mentioned above might point toward either at-large elections (as provided in 2a(c)) or “hewing as closely as possible” to an older legislative map (or both, as the Mitchell/Mortara brief above argues). Other statutes or severability principles might point to something similar. Or to a starker remedy like nullity, refusing to recognize a valid method of election until one is passed that complies with the law.

Again, these issues all seem slightly premature to me, and they would deserve further study once the more basic principles are determined, but I don’t think they are mysterious.

The post The Constitutional State Legislature Doctrine appeared first on Reason.com.

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A bill introduced in the Michigan Legislature this week could mean life in prison for any parent or doctor who “consents to, obtains, or assists with a gender transition procedure for a child.” The measure—H.B. 6454—amends the state’s child abuse statute to define such actions as child abuse in the first degree.

Under current Michigan law, first-degree child abuse is defined as “knowingly or intentionally caus[ing] serious physical harm or serious mental harm to a child.” It’s punishable under Michigan law by “imprisonment for life or any term of years.”

H.B. 6454 would add to the definition “knowingly or intentionally consent[ing] to, obtain[ing], or assist[ing] with a gender transition procedure for a child,” if the person acting is “a child’s parent or guardian or any other person who cares for, has custody of, has authority over a child regardless of the length of time that a child is cared for, in the custody of, or subject to the authority of that person, or a physician or other licensed medical professional.” Gender transition procedures are defined to include not just surgical interventions but also the prescription of puberty blockers and hormones.

Yes, under the proposed change, prescribing puberty blockers or cross-sex hormones to a teenager would be equivalent to severely beating a child. And it would be defined as a more severe form of abuse than starving or abandoning a kid.

The proposed statute says that allowing gender transition treatment for a minor—no matter the child’s age—is a more severe form of child abuse than a “willful failure to provide food, clothing, or shelter necessary for a child’s welfare,” or the “willful abandonment of a child.” It would also be defined as a more severe offense than negligence or recklessness that “causes serious physical harm or serious mental harm to a child,” someone “knowingly or intentionally commit[ing] an act likely to cause serious physical or mental harm to a child,” or someone “knowingly or intentionally cause[ing] physical harm to a child” that is not severe. And it would be in the same category as intentionally causing “a physical injury to a child that seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.”

Even if you’re leery of prescribing puberty blockers and cross-sex hormones to minors, it’s got to be clear that these things—and even more drastic surgical measures—are worlds apart from the kinds of pointless and savage abuse Michigan legislators would equate them to. Parents and doctors who consent to the former think they’re helping, even if this wisdom may be debatable. And while some of these drugs and procedures can come with side effects—well, so do a lot of things. Yet we often still allow these things when a doctor deems them prudent or when the alternative might be worse.

It’s one thing to say such treatments for minors should not be a first resort—that we should be cautious, and perhaps even require more medical checks and balances. But it’s another entirely to define difficult treatment decisions made by doctors, parents, and kids together as equivalent to beating a child to the point of causing brain damage.

Alas, this absurdity seems to be gaining ground. Michigan is attempting to follow the lead of Texas, which earlier this year categorized the medical treatment of trans minors as child abuse. Enforcement of that policy is supposedly on hold as a lawsuit over it plays out, though recent court filings allege that investigations into trans kids [OK?] are still taking place.

The post Michigan Bill Could Mean Life in Prison for Parents or Docs Who Allow Gender Transition Treatment for Minors appeared first on Reason.com.

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Inflation continued burning a hole in Americans’ wallets last month.

Prices rose by an average of 0.4 percent overall, driven primarily by rising costs for housing, food, and medical care. According to the newly released data from the Bureau of Labor Statistics, prices rose by 8.2 percent overall during the last 12 months ending in September. Food prices have climbed by 11.2 percent in the past year, while energy prices are up by a whopping 19.7 percent despite falling by about 2 percent in September.

September’s rising prices occurred despite the ongoing attempts by the Federal Reserve to bring inflation under control with higher interest rates, and it points to ongoing fiscal difficulties for both everyday Americans and the federal government that caused much of this current mess.

Here are the rest of the ugly details from Thursday’s consumer price index (CPI) report:

Particularly worrying is that so-called core CPI, which filters out more volatile categories like food and energy prices, rose by 0.6 percent last month. In other words, inflation is widespread throughout the economy and no longer contained to the categories that were driving the phenomenon a year ago. Far from being transitory, inflation now seems to be a deeply rooted problem.

The CPI rose +0.4% in September, and is now running at 8.2%, down from 8.3%.

Excluding food and energy, prices rose +0.6% in the month, so core inflation is 6.6%.

Inflation is proving to be more resilient — and more troubling — than many had hoped or forecast.

— Justin Wolfers (@JustinWolfers) October 13, 2022

Rising prices are primarily a concern for Americans who have to actually pay their bills and balance their budgets, of course. But ongoing inflation is increasingly becoming a problem for the federal government as well.

As Reason has reported, rising interest rates needed to combat inflation will rebound onto the federal balance sheet by making the federal debt more expensive. Even when interest rates were at or near historical lows, interest payments on the national debt were on course to become one of the largest segments of the federal budget within the coming decade. Higher interest rates mean the government will have to spend a significantly larger amount of revenue on simply managing the existing debt—a nasty feedback loop that makes the government’s already untenable fiscal situation considerably worse.

The warnings have been coming for years. But no one has been listening. “For well over a decade, the Congressional Budget Office (CBO) has been issuing stark warnings about the nation’s current debt levels and the long-term buildup of debt they portend,” Reason‘s Peter Suderman wrote last week.

But, wait, there’s yet another problem. Social Security hands out annual cost-of-living adjustments, or COLAs, to beneficiaries, and those adjustments are based on the rate of annual inflation each September. This year, that means Social Security benefits will increase by 8.7 percent.

That’s good news for elderly Americans, but it’s only going to accelerate another fiscal crisis. Social Security is already on track to be insolvent by 2034—at which point, unless Congress acts, benefits will be cut across the board.

In one sense, then, persistently rising inflation is an immediate problem for everyone who has to eat, pay rent, and likes having lights and heat in their homes. That’s bad enough, but September’s inflation report is also a harbinger of other major problems to come.

The post Inflation Hits 8.2 Percent After Another Month of Sharply Rising Prices appeared first on Reason.com.

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Racist remarks and intimidation attempts from Los Angeles leaders and labor officials. A major Los Angeles labor federation threatened the Los Angeles Times over a story about offensive remarks made by Los Angeles City Council President Nury Martinez in a conversation with Councilmembers Gil Cedillo and Kevin de León and Los Angeles County Federation of Labor President Ron Herrera.

During the October 2021 conversation—a recording of which was recently leaked—Martinez referred to Councilmember Mike Bonin (who is white) as a “little bitch,” and said his son (who is black) was “parece changuito“—like a monkey—who needs to be beaten. “They’re raising him like a little white kid,” Martinez said. “I was like, this kid needs a beatdown. Let me take him around the corner and then I’ll bring him back.”

“Later in the conversation, the group talked about how Koreatown — a largely Latino neighborhood — should be handled in redistricting,” noted the Times in an article published Sunday:

The group then questioned whether Shatto Place, a small street, and Lafayette Park are in Koreatown. “I see a lot of little short dark people,” Martinez said of that section of Koreatown, employing stereotypes long used against Oaxacans in Mexico and in the United States. “I was like, I don’t know where these people are from, I don’t know what village they came [from], how they got here,” Martinez said, before adding “Tan feos” — “They’re ugly.”

In the Times article, Martinez, de León, and Herrera each apologized, and Cedillo said he didn’t recall the conversation.

Martinez subsequently resigned from the City Council, and Herrera resigned as president of the labor federation—a group representing 800,000 workers belonging to 300 unions.

“Racism in any form has no place in the House of Labor,” interim federation President Thom Davis said in a statement Tuesday. “It is unconscionable that those elected to fight for our communities of color would engage in repulsive and vile anti-Black, anti-LGBTQ, anti-Asian and anti-Oaxacan remarks that pit our working communities against each other. These sentiments will not be tolerated by our organization or those who we represent.”

This is a good response. But it wasn’t the federation’s first response. Prior to the Times story coming out, a lawyer for the labor federation tried to bully the Times into not publishing it. In an early Sunday email to Los Angeles Times editors, lawyer Julie Gutman Dickinson described the leaked conversation as “an illegal recording” that was made “in violation of California’s privacy and recording laws.”

“If the LA Times publishes this illegal recording, or information contained in it, it is condoning this illegal conduct and subjecting itself to legal liability,” wrote Dickinson. “It is imperative for this reason, and to avoid harm to innocent people, that the LA Times refrains from publishing anything from the illegal recording.”

The Los Angeles County Federation of Labor should probably get itself new counsel. If the recording was made illegally, any criminality accrues to the person who made the recording; the Los Angeles Times is not breaking any laws by reporting on it. And aside from being a dubious legal strategy, the threat is also a bad PR strategy. The union could have simply condemned Martinez’s remarks and insisted that it does not condone them. Instead, it tried to intimidate a newspaper into burying the story.

In a letter to the union, Los Angeles Times General Counsel Jeff Glasser wrote that its response was “contrary to the United States and California Supreme Court constitutional law, which recognizes that the First Amendment fully protects news reports on illegally intercepted recordings about matters of public concern.”

Citing a number of relevant cases, Glasser concluded that “the Los Angeles County Federation of Labor could not constitutionally hold liable LA Times or its journalists for publishing a recording of three LA City Council members and a county labor official making pejorative references to fellow City Council members.”

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FREE MINDS

Copyright versus the internet. Glyn Moody, the author of Walled Culture, recently joined Mike Masnick on the Techdirt podcast. Per Masnick, Walled Culture is a book “that goes through the history of how legacy copyright industries have tried to harm the internet and gain ever greater control over the work of artists and creators.” You can download a free copy of the book here and listen to the podcast about it here.

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FREE MARKETS

A licensed Texas roofer helping put roofs on Florida houses damaged by Hurricane Ian was arrested for not having a roofing license in Florida.

OH I AM LOSING IT. HOURS APART. After Duque Roofing worked with police to help with food after the storm, THEN their person was arrested for unlicensed (they ARE licensed in Texas though) roofing by other police. Just SO EGREGIOUS.

A bunch of things to note here
/1 pic.twitter.com/8FYEdtm2bR

— Shoshana Weissmann, Sloth Committee Chair ???? (@senatorshoshana) October 12, 2022

Reason‘s Eric Boehm has more here.

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QUICK HITS

Great quote on the perennial idea that drug dealers will kill your kids w Halloween candy https://t.co/AS0CzSdbKz pic.twitter.com/s45WvhUARF

— David Weigel (@daveweigel) October 12, 2022

• “Jurors ordered conspiracy theorist Alex Jones on Wednesday to pay nearly $1 billion to Sandy Hook Elementary School shooting victims’ relatives and an FBI agent,” reports the Associated Press. “The $965 million verdict is the second big judgment against the Infowars host for spreading the myth that the deadliest school shooting in U.S. history never happened, and that the grieving families seen in news coverage were actors hired as part of a plot to take away people’s guns.”

• The Economist comes out in favor of cocaine legalization.

• The meme stock community is…getting weirder?

I've been digging into the communities surrounding meme stocks and, like, it's weird man. Somehow a short squeeze opportunity back in 2020 has mutated into a straight up apocalypse cult trying to trigger the end of the world.

— Dan Olson (@FoldableHuman) October 10, 2022

• What the 1970s can teach us about inflation now.

The post Union Group Tries To Bully <i>L.A. Times</i> Into Burying Racist Remarks appeared first on Reason.com.

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Two 2019 alumni of Berkeley Law School, Nir Maoz and Olivia Wittels, are concerned that the recent attention given to the “no speakers who support Israel’s existence” rule adopted by nine student groups at the law school is giving people a false impression of the school. Jewish and Zionist students at Berkeley Law, they write, are thriving. They describe their own experiences in support of that claim.

I don’t doubt they are right about the thriving part, but after I finished the article I wound up more concerned about the environment at Berkeley Law than I was before I read it. Sometimes, incidents like the current speaker boycott are a short-term phenomena, spurred by an especially charismatic student activist who temporarily rallies other groups to his side. But Maoz and Wittels article suggests that the problem is much more deep-rooted and longstanding. They write: “We won’t deny that in our three years at Berkeley Law, we experienced a number of antisemitic incidents that contributed to what was, at times, a hostile climate for many Jewish students.”

They don’t describe what these incidents were, but I find it striking that in a defense of their alma mater, with perhaps the most “progressive” student body of any law school, they describe antisemitism sufficiently serious to at time create a hostile environment. Good for them for not letting it interfere with their activism, nor for falling into a victim mentality. But something seems to be seriously amiss at Berkeley Law.

The post A Paradoxical Defense of Berkeley Law School appeared first on Reason.com.

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