Friday, February 03, 2023

Bruen's Goose Continues To Not Apply to the Gander

The thing about the Fifth Circuit's recent ruling that the Second Amendment gives men under domestic abuse restraining orders an inalienable right to bear arms is that it is (a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision. This is because the Bruen decision will regularly and predictably lead to insane results.

That said, I did want to flag something in the opinion that I've picked up on before -- namely, the inconsistent commitment to Bruen's supposed prohibition on weighing or considering "social policy" considerations. Judge Wilson, writing for the panel, expressly cites to this portion of Bruen, saying that while the prohibition on gun possession by domestic abusers "embodies salutary policy goals meant to protect vulnerable people in our society ... Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right." This principle is, perhaps above all else, the crux of Bruen's standard -- no matter how ridiculous, or absurd, or unfair, or chaotic the policy outcomes are, courts are not permitted to "weigh" them against the historical limitations that bounded the Second Amendment. The latter begins and ends the conversation.

Again, that principle is absurd. But it's Bruen's principle, and the Fifth Circuit gleefully cites it to explain why the prospect of terrified and murdered women can play no role in its legal analysis. But what happens if the historical arguments seem to counsel permitting more sweeping gun regulations than conservative jurists might like? All of the sudden, those social policy considerations come roaring back into view.

Addressing the historical precedents which did clearly envision government's authority to disarm "dangerous" persons, Judge Wilson explains that such exceptions must be narrowly construed so as not to apply to the case of domestic abusers. Why? Because, he asserts,

the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

I take no position on whether the government's interpretation is so expansive. But note that this line of argument is expressly an analysis of the proper policy sweep of government regulation. We should tailor our interpretation of the Second Amendment's scope so as to avoid a policy outcome whereby too few people are guaranteed the right to keep and bear arms; to avoid an outcome where the government is permitted to disarm people who these judges think it would be manifestly unfair to have their gun rights taken away.

This is exactly the sort of policy analysis Bruen purports to forbid, only here the "policy" concerns are ones counseling in favor of greater freedom to bear arms rather than reduced freedom to bear arms. Perhaps it seems absurd to permit the government to take away arms from people just for getting a speeding ticket. But so what?  Bruen was emphatic that this sort of social policy assessment has no role in Second Amendment adjudication. If the historical analogues give the state that sort of latitude, then that is supposed to end the conversation. Again, it is baked in the Bruen cake that it will lead to results that may appear to modern eyes ridiculous, because Bruen expressly instructs courts that they aren't allowed to care about those consequences no matter how absurd they might seem to be.

But as the Fifth Circuit's ruling makes clear, the Bruen prohibition on weighing policy consequences is, unsurprisingly, a one-way ratchet. Conservative courts will portentously declare that Bruen forbids them from considering the disastrous consequences of countless terrified or murdered women if it means taking away domestic abusers' guns -- but if history and tradition start to point towards enabling gun restrictions that the right finds too onerous, then all of the sudden we get a screeching parade of contemporary policy horribles that are treated as legally dispositive. This is what generates such well-deserved cynicism about the state of the judiciary today -- it's not just that the legal rules the governing class of jurists announce are absurd, it's that these jurists do not even pretend to be bound by them the second they prove inconvenient to their underlying politics.

The other thing to note about this case is that, if the Supreme Court reverses it -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

Monday, January 30, 2023

Let That Be a Lesson For You, Part II

Way back in 2009, I wrote about a case in the Netherlands where an Arab NGO was prosecuted for hate speech after publishing an article insinuating the Holocaust was exaggerated. The thing was, the NGO did not actually think the Holocaust was exaggerated -- rather, it was trying to draw attention a claimed double-standard after Dutch authorities had dropped hate speech charges against right-wing Dutch filmmaker Geert Wilders for a film critics claimed insulted Muhammad. 

Drawing on entry #45 of advice for evil overlords ("I will make sure I have a clear understanding of who is responsible for what in my organization. For example, if my general screws up I will not draw my weapon, point it at him, say 'And here is the price for failure,' then suddenly turn and kill some random underling."), I observed that when a non-Jewish far-right extremist engages in hateful speech towards Muslims, the proper response -- even if one believes in tit-for-tat -- is not to turn and attack some random other minority group (here, Jews).

In the files of "all that's old is new again", a similar situation appears to be brewing in Sweden, where a Egyptian writer has postponed (but not cancelled) a planned "protest" of burning a Torah scroll in front of the Israeli embassy. Why is he burning a Torah scroll in front of the Israeli embassy? Because a far-right Danish journalist and politician (who is not Jewish) recently burned a Koran in front of the Turkish embassy. A hateful and despicable act, to be sure -- but why is the response to awful behavior by a right-wing, non-Jewish Dane to attack the Jewish community in front of the Israeli embassy? Burning a Christian Bible in front of the Danish embassy would not be justified, but at least it would have symmetry. But for some reason Jews are always the random bystander executed in situations like this.

I also want to emphasize that local Jewish community leaders credit the prevention of the Torah burning to Muslim leaders in Sweden speaking out against it. This "protester" is a hateful schmuck whose hate happens to illustrate a particular form of pathology I wanted to highlight. Fortunately, he's a hateful schmuck in the course of being repudiated, and that's a good thing.

Endless Stunt Investigations is All the House GOP Will Do, Because It's All They Can Agree Upon

Having finally secured his chair as House Speaker, Kevin McCarthy (R-CA) has given his caucus marching orders -- and those orders are "do nothing but launch petty performative investigations of the Biden administration".

Kevin McCarthy has told House Republicans to treat every committee like the Oversight panel — that is, use every last bit of authority to dig into the Biden administration. That work begins in earnest this week.

Several sprawling probes — largely directed at President Joe Biden, his family and his administration — set the stage for a series of legal and political skirmishes between the two sides of Pennsylvania Avenue. It’s all with an eye on the true battle, the 2024 election, as Biden flirts with a reelection run and House Republicans hope to expand their control to the White House.

After two impeachments of former President Donald Trump and a select committee that publicly detailed his every last move to unsuccessfully overturn the 2020 election results, GOP lawmakers are eager to turn the spotlight. And their conservative base is hoping for fireworks, calling on Republican leaders to grill several Biden world figures, including Department of Homeland Security Secretary Alejandro Mayorkas, retired chief medical adviser Anthony Fauci and presidential son Hunter Biden.

This isn't at all surprising, of course. In fact, it was probably inevitable after the Speaker vote fiasco exposed just how bitterly divided the GOP is (and how in thrall it is to its nihilist caucus). They're never going to forward an affirmative policy agenda, since they can't agree on any particulars beyond sloganeering (and also, policies tend to require money, which the GOP adamantly refuses to raise or spend unless it is on gut-busting upper-bracket tax cuts). But investigations? That doesn't require any policy agenda at all -- that's just mugging for the camera and talking about how much they hate Democrats. Right in their wheelhouse! 

That the GOP is still nursing ludicrous levels of grievance over the terrible unfairness of a House panel exposing why coups are bad only exacerbates their belief that this is naught but turnabout being fair play. And as the New York Times reported the other day, the GOP's view of "investigations" is to take it as a divine axiom that they and theirs are being abused, then pursue that axiom to hell and back no matter how little evidence ends up supporting the proposition.

So this is entirely within expectations for the new GOP House. Expect nothing but loud yelling investigations for two years as they throw everything they can at a wall and wait for something to stick. They don't agree on or even believe in anything else, but they can agree on doing that.

Friday, January 27, 2023

The Free Speech Chilling of Free Speech Protests

As some of you know, there's been a bunch of controversy recently about the "free speech culture" at Yale Law School, and particularly whether the school is hospitable to conservative speech. Several conservatives have argued that particularly raucous protests that have targeted conservative speakers have crossed over into effective censorship, negating Yale's claim to be a place where diverse views can be discussed.

On that note, David Lat reports on a recent talk at Yale given by an attorney for the right-wing, anti-LGBTQ group Alliance Defending Freedom (on a panel with former ACLU head Nadine Strossen and Yale Law Professor Robert Post). By all accounts, the talk, which had approximately 100 attendees, went off without a hitch. Far from the abuses of the past, this time there was not, in Strossen's words, "even a peaceful protest."

Now, I want to be very careful in articulating what I say next. I'm not a "protest" guy. I don't enjoy going to them, I don't find them especially inspiring even when I agree with them, and I'm probably predisposed to think of them as unreasonable. And I'm fully willing to believe that in the past some forms of "protests" at Yale (e.g., I don't think that protesters can be permitted to "shout down" views they disagree with).

All that said, it is also an element of free speech culture to permit some forms of peaceful, minimally disruptive* protests. Students quietly holding signs, or passing out flyers, or even booing the speaker when she's introduced -- those, too, are exercises of free speech, the protection of which is important just as protecting the ability of dissident speakers to come to campus and have a genuine, practical ability to present their views is important.

So when I read that there wasn't "even a peaceful protest", well, obviously one explanation for that is that no Yale students felt moved to protest this speaker, or that they were busy with other things. But given that this speaker is exactly the sort of figure who had been raucously protested in the past, and that presumably there are still a fair chunk of students who probably continue to deem her protest-worthy, what does it signify that no protest occurred? It seems highly likely that the steps Yale has taken to discourage illegitimate, censorial protest (and again, I'm inclined to think that there are such protests and Yale is right to tamp down on them) have had the additional chilling effect of deterring legitimate, non-censorial protest.

The conservative journalist who quoted Strossen as saying there were no "peaceful protests" also reported that "there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions." The first of these might be validly limited as a "shout down." The latter two, however, don't seem procedurally inappropriate (though of course one can agree or disagree with their on-the-merits substance). Free speech protects the right of attendees to have signs with profanity on them. Free speech protects the right of audience members to ask harsh or hostile questions. If those, too, were eliminated, then it seems Yale didn't just ban illegitimately disruptive protest; it also functionally squelched perfectly legitimate, normal forms of protest. As one sort of speech avenue opened, another closed.

The laudatory tone of the articles I've read praising Yale for successfully hosting this speaker suggest, however, that this ebb of free speech culture is not viewed as significantly worrisome. And perhaps the problems are not in equipoise -- one might think that obstructing invited speakers from presenting via "shout downs" is a more serious violation than deterring peaceful protests of speakers via perhaps overbroad or heavy-handed administrative initiatives. But it still worth recognizing that there appears to have been a free speech cost here as well as a benefit. A healthy free speech culture at Yale absolutely must allow speakers of diverse views the realistic, non-nominal opportunity to present their arguments. But such speakers are not entitled to be free from the normal pushback and protest that is also part of a culture of free speech. If the pendulum at Yale has swung so far back as to eliminate the latter, that cannot be deemed an unmitigated victory.

* Why "minimally disruptive"? Some take the view that any sort of "disruption" of a speaker's talk, even if de minimis, represents a form of censorship. This seems untenable: normally audience reactions like booing a poorly received point would fall into this category -- a speaker probably has to temporarily pause and regroup until the booing dies down, and so is "disrupted" -- but that can't be the standard for governing whether the speaker has functionally been obstructed from speaking.  On the other hand, some argue that protests are by their nature meant to be disruptive -- considerably more so than "minimally" -- which is what makes them a protest. I don't necessarily disagree with that point, but what I would say is that a protester who takes that approach is consciously refusing to submit to or cooperate with the prevailing legal or governance structures (that, again, is implicit in the disruption) and so cannot truly complain when those structures refuse to cooperate back (e.g., by imposing various forms of sanctions). "Minimally disruptive" I think walks the line appropriately.

Wednesday, January 25, 2023

New Depths of "Both Sides-ism": Gun Violence Edition

Commenting on the only-in-America news that the first 24 days of 2023 have already seen 73 Americans killed in mass shootings, Paul Campos points to a CNN article on the matter which he summarizes as

point[ing] out that fault lies on both sides of the political aisle for this epidemic, given that the Republicans don’t want to do anything about it, and the Democrats are unable to force the Republicans to do anything about it.

Ha ha -- good one, but obviously that's an exaggeration. Here's what the article says:

A partisan political system that is little help

Resignation that nothing will change is fueled by a political system that is so entrenched on guns that it can’t usually frame a meaningful response to shootings, let alone solutions. Offers of “thoughts and prayers” by pro-gun rights Republicans are routinely mocked by Americans looking for reform. Conservatives often divert blame to a national mental health crisis that they do little to alleviate.

Second Amendment absolutists often argue that if more “good guys” carried guns, everyone would be safer. In their own ritualistic response, Democrats often re-up demands for an assault weapons ban they know they can’t pass.

Sigh

Nobody Is More Gullible Than Alt-Center "Free Speech" Advocates

When Florida announced it was banning the AP African-American history course, 90% of Ron DeSantis' supporters know exactly what he's doing -- legally banning wrongthink on race to the greatest extent possible -- and support it on that basis. They know that's what he's doing because he's been crystal clear about his agenda from day one and entirely consistent in applying it.

But you still can easily find alt-center "free speech!" advocates who tie themselves in knots to plead that it's actually about "opposing indoctrination" or "ensuring that multiple perspectives are taught" or something that just has to be different from "rank censorship". Meanwhile, the Florida government just states outright that if the college board wants its class taught in the Sunshine State, "we expect the removal of content on Critical Race Theory, Black Queer Studies, Intersectionality and other topics that violate our laws." They're not even bothering to hide it, but the alt-center sorts are perfectly happy to pull the wool over their own eyes in order to maintain harmony on their Scales of Broder.

It is incredible, looking back, to remember that approximately 9 month period where conservatives went on a high horse about protecting "free speech" and "uncomfortable learning" in the educational space as against various real and imagined left-wing bugaboos. The rapidity to which they shifted without even breaking a sweat into "enact legal bans on left-wing ideas whenever and wherever we can", and the degree to which their "free speech" hangers-on just followed along without seeming to notice or care that they suddenly were becoming foot soldiers of legally-mandated censorship, is a development I still can't fully wrap my head around. At most, you get some "both sides" grousing about how while they aren't exactly fans of throwing librarians in jail if they stock books that deviate from state-imposed orthodoxy, they can't focus on that too extensively because it might distract them from finishing their 67-tweet thread on an overzealous student protest at Swarthmore, followed by a portentous statement expressing outrage that anyone would even think of withdrawing any honors or accolades from state-censor-in-chief Ron DeSantis.

But seriously -- has any movement more quickly demonstrated itself to be populated entirely by useful idiots than this one?

Hamline Faculty Vote No Confidence in President

Eugene Volokh has the faculty statement, passed by a vote of 71-12, asking the President to step down after her mishandling of accusations of Islamophobia against an adjunct professor who showed a painting depicting Muhammad in an art class.

Under the circumstances, this is the right decision, and it is heartening (though not surprising) that this appears to be the broad consensus of Hamline faculty.

Thursday, January 19, 2023

If SCOTUS Had Its Way, Countless Michigan Jews Would Be Dead By Now

A Dearborn, Michigan man was indicted on gun charges stemming from an alleged plot to attack a Michigan synagogue. The suspect, Hassan Chokr, was blocked from purchasing a shotgun, rifle, and semiautomatic pistol following the conclusion of a background check, and federal prosecutors said that in his attempt to purchase a gun Chokr made "three false statements, any one of which would prohibit him from possessing a firearm." Those statements were denials that Chokr
  1. Had ever been convicted of a felony;
  2. Had currently pending charges of a felony; and
  3. Had ever been committed to a mental institution.
Presumably, the background check revealed the existence of one or more of these flags in Chokr's record, thus preventing the purchase and likely averting a tragedy.

Given that, it's worth noting that all three of these bases for denying someone a gun purchase are currently on thin ice following the Supreme Court's Bruen decision, which radically circumscribed the government's ability to place limits on American's right to gun ownership.

On the first, the Third Circuit is in the process of reconsidering its earlier ruling that non-violent felons can be excluded from gun ownership (Chokr's conviction related to theft relating to a financial device such as a credit card, and so likely would be viewed as a non-violent felony).


And on the third, prominent gun advocates like Eugene Volokh have aggressively challenged whether a per se bar on gun possession by persons who have been committed to a mental institution are constitutional.

In short, it is entirely plausible that the federal judiciary, following the Supreme Court's lead in Bruen, will conclude that all the failsafes that successfully prevented Hassan Chokr from purchasing guns he would have likely used to massacre Michigan Jews are unconstitutional and must be stripped from the books. It's not guaranteed -- while Bruen's language is expansive to the extreme, nobody knows how far the Supreme Court's nerve will go when push comes to shove -- but none of these objections can dismissed out of hand given Bruen's radical reinvention of Second Amendment doctrine.

Certainly, the Court has been crystal clear that the essential liberties of the Second Amendment are far more important than the countless lives its jurisprudence puts at risk. You know what they say: the tree of liberty must periodically be watered with the blood of tyrants innocent Jews.

Wednesday, January 18, 2023

New York Voters Who Elected George Santos Should Be Ashamed of Themselves

The degree to which George Santos appears to lie about everything really is jaw-dropping even in a post-Trump America. Is it worse to be the subject of a general list of one's "top 11 most absurd lies", or to be the subject of more specific headlines like "George Santos took $3,000 from dying dog’s GoFundMe, veterans say"? I can't even process.

I am curious, though, to see more interviews with voters in New York's 3rd congressional district, who just sent him to Congress. The NY-03 is a swingy enough district that I don't think Santos will be the beneficiary of too much "own the libs!" or "red right or wrong!" apologetics. Nonetheless, I want to know -- are Santos' constituents embarrassed? Not just of him, but of themselves? They picked this guy, after all. We get angry at politicians all the time, but in a democracy the choices of We the People are the responsibility of We the People. George Santos is first and foremost a failure of George Santos, but he is also in non-negligible fashion a failure of the voters who elected him.

It is I think too much to hope for that voters reckon with how they can taken in by such a naked fraudster and internalize some lessons that will inculcate them from future mistakes. But a boy can dream.

Tuesday, January 17, 2023

DEI's "Psychology" Double-Bind

The NYT has an op-ed today regarding DEI programs -- and in particular, the scant research suggesting that they actually, you know, work.

I'm familiar with some of the research in this area and while I could quibble on the margins, the core point is more or less accurate. There is fairly robust research evidence that establishes implicit bias is prevalent in our society, but there is not much in the way of verifiably effective interventions that combat it. Many DEI programs which purport to address implicit bias and other forms of prejudice are at the very least not proven to actually have an impact on the problem they purport to address. Finding an intervention that reliably and durably alters discriminatory attitudes (particularly implicit ones) is somewhat of a white whale for the social psychology profession. But in the meantime, the lack of evidence that many DEI programs tailored towards altering attitudes are effective suggests that a ton of time and money is being wasted.

Given that, the article makes the following suggestions:

So what does work? Robert Livingston, a lecturer at the Harvard Kennedy School who works as both a bias researcher and a diversity consultant, has a simple proposal: “Focus on actions and behaviors rather than hearts and minds.”

Dr. Livingston suggests that it’s more important to accurately diagnose an organization’s specific problems with D.E.I. and to come up with concrete strategies for solving them than it is to attempt to change the attitudes of individual employees. And D.E.I. challenges vary widely from organization to organization: Sometimes the problem has to do with the relationship between white and nonwhite employees, sometimes it has to do with the recruitment or retention of new employees and sometimes it has to do with disparate treatment of customers (think of Black patients prescribed less pain medication than white ones).

The legwork it takes to actually understand and solve these problems isn’t necessarily glamorous. If you want more Black and Latino people in management roles at your large company, that might require gathering data on what percentage of applicants come from these groups, interviewing current Black and Latino managers on whether there are climate issues that could be contributing to the problem and possibly beefing up recruitment efforts at, say, business schools with high percentages of Black and Latino graduates. Even solving this one problem — and it’s a fairly common one — could take hundreds of hours of labor.

I have no intrinsic quarrel with this. Instead of looking for "bad brains" and trying to fix them, focus on tangible actions and outcomes. If your company has too few Black and Latino people in management roles, instead of trying to root out the deep-seated biases in your executives and HR staffers, just get to work directly on the problem.

But this anti-psychology turn is interesting for one particular reason: it flies in the face of the prevailing conservative formulation of what discrimination is: namely, discrimination occurs if and only if one can prove the presence of malign intent by a discrete decisionmaker. Unless someone holds racially discriminatory attitudes, there cannot be said to be racial discrimination at all. From that framework, which holds out psychology as the exclusive prerequisite of discrimination, it makes sense that an anti-discrimination initiative would have to be psychologically-inclined as well. And indeed, focusing on actions and behaviors in absence of establishing bad psychological intent is an anathema to the conservative (and, often, alt-liberal) framework -- that way lies "racial balancing" or "equality of result" or any number of terrible ghouls which are supposedly the patrimony of the progressive DEI edifice.

And so we have a double-bind: first, prominent political and social institutions (to say nothing of legal precedents) say that the only cognizable way to speak of discrimination is through psychology -- bad motivations. Then, when DEI professionals accordingly work within that framework and try to address the problem through psychology, they're pilloried because such interventions, it turns out, are only dubiously reliable and don't directly correlate with fixing the "actual problem" of underrepresentation of social outgroups. Which is fine as far as it goes, except that when DEI tries to pivot back to the "actual problem" without the baggage of wading through conscious and subconscious attitudes, they're lambasted as crying "discrimination!" without proof, since only psychology is said to generate valid evidence of discrimination in the first place. It's an impossible situation.