"I'm Not Owned! I'm Not Owned!" Originalists Continue To Insist as They Slowly Shrink and Transform into a Corn Cob

The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").

The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.

But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.

Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.

I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.

The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed  were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all". 

Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.

Israel Threatens New Settlements in Retaliation for Palestine Recognition

CNN ran this story a few days ago, detailing statements from some Israeli government officials promising expansion of West Bank settlements in response to the decision by several European nations to recognize Palestine as a state.

Israel’s government says it is looking to “strengthen” Jewish settlements in the occupied West Bank after several countries unilaterally recognized a Palestinian state.

In a statement issued on Sunday, the Prime Minister’s Office said all of the proposals for strengthening settlements in what Israel biblically refers to as Judea and Samaria would be voted on at the next Security Cabinet meeting.

Norway, Ireland, Spain and Slovenia have each recognized an independent Palestinian state in recent weeks, a move motivated at least in part by Prime Minister Benjamin Netanyahu’s open refusal to commit to a two-state solution.

[....] 

Israel’s far-right finance minister, Bezalel Smotrich, said in May that Israel should approve 10,000 settlements in the West Bank, establish a new settlement for every country that recognizes a state of Palestine, and cancel travel permits for Palestinian Authority officials.

At the top level, this is another data point for an already-complete illustration showing that the Israeli government has quite a few far-right expansionist extremists in positions of alarming power and influence. Not new, but still essential to flag.

But there is another point worth mentioning, which also is not especially novel but does need to be pointed out. It is common to argue that Israel's brutal, hyper-aggressive assault on Gaza is persisting because other nations (particularly, but not exclusively, the United States) haven't taken sufficient punitive action against Israel to punish it for its misdeeds. Diplomacy is a function of carrots and sticks, and we've left the "stick" part out of our repertoire for too long. Had we utilized sticks more robustly, then maybe much of the current crisis could have been averted or at least ameliorated.

Perhaps. But as the above story illuminates, it's not necessarily the case that diplomatic "sticks" always serve to bring their targets to heel, or even arrest their bad behavior. Sometimes, particularly over the short-term, they can instead accelerate it. For obvious reasons, states have a very strong incentive to not give the impression that hostile action (or actions they perceive as hostile) against them will yield positive results. To the extent Israel doesn't want other countries to recognize Palestine, it's very predictable that its next move in the game will be to take actions that suggest "doing this has led to X Y Z bad consequences you don't want to see repeated." Countries that feel isolated or as if they can only rely on themselves often are more aggressive or reckless than those enmeshed in thick webs of relation, precisely because they believe that even a single mistake or miscalculation could be their ruination. As awful as it can seem to feel complicit in another nation's bad behavior because one is seemingly continually coaxing and pleading and appeasing rather than just putting a foot down and saying "no", the latter approach often runs the risk of being triggering terrible backlash with devastating immediate consequences.

This isn't to say sticks are never warranted at all. Sometimes the stick-like action is important enough for its own sake to absorb the immediate negative reaction. More broadly, the stick-wielders also have good reasons to communicate that where a given actor crosses certain redlines, they'll endure consequences they won't enjoy.

All of which is to say that diplomacy is a delicate dance, and there are more moving parts than many would care to admit. Sometimes it's worth swallowing an immediate bad consequence to set a broader precedent or to secure a long-term goal. But sometimes there are good reasons to think that the stakes of the immediate backlash demand swallowing one's pride and continuing to take what to an outsider may seem to be a maddeningly light-touch approach. The fact is that in all diplomatic relationships there are multiple players in the game, and it is rare that anyone -- even a hegemon like the United States -- can simply fiat someone else into compliance (I thought this old post from Cheryl Rofer on the term "deterrence," and how the term purports to "transfers agency to the deterrer" while obscuring that the "deterred" has agency too and won't necessarily react how you want them to, raised similar points).

Am I saying recognizing Palestine is a circumstance where countries should have backed off to avoid the Israeli reaction? No -- in fact, I think there are some very good reasons why here it was reasonable for the countries in question to bite the cost and go through with recognition. Again, sometimes absorbing the immediate backlash is worth it. But we should be clear-eyed about the trade that may have been made: recognition of Palestine for increased and accelerated settlement activity in the West Bank.

Is it fair that this is a "trade"? No. But diplomacy isn't about what's fair. And the broader lesson is one that's important to remember -- regarding Israeli and Palestinian actors alike. Too often, too many of us are seduced by the notion that it is possible to simply bludgeon the bad guy into obedience. The reality is that often, the project of avoiding the worst outcomes means making nice and doing nice things to actors who are doing, have done, and will continue doing all sorts of unlovely activities. If you can't accept that, you might want to find a different field to commentate on.

Carleton Reunion Protest Report

I attended my college reunion this week (my 16th, my wife's 15th). It was, as always, a lot of fun to see old friends and old professors and old hangouts. 

Going in, I was curious about how much protest activity there might be (reunion is a huge event at Carleton, to the point that other schools send observers to see how we do it). Despite being on campus these past few months, I've actually been relatively insulated from major protest events: Lewis & Clark has been a lot quieter than other Portland campuses -- compare Portland State (where the library was absolutely trashed) or Reed (where a Jewish student was hit with a rock) -- and what protest activity has occurred centered on the undergraduate campus. I knew Carleton had an encampment at one point, but hadn't heard anything else about it, and my general rule of thumb on this subject has been "no headlines = good news."

 

Anyway, the answer to my question of how much protest activity would be found at reunion was "some, but not too much." There were a few alumni wearing pro-Palestine t-shirts -- I probably saw 3 or 4 over the course of the weekend. The major action item seemed to be a pledge to withhold donations "until divestment". I saw a handful of buttons to that effect, but it didn't seem to be very effective (relatively early in the weekend the reunion organizers announced that my wife's class had already blown past its fundraising target). On the last day, about a dozen alumni protested in front of a campus center, which to me just honestly looked boring -- standing in a line on a hot day chanting the same few phrases in unison? Subject matter aside, it's clear that protests just aren't for me. But it didn't really disrupt anything or cause any problems, so they can say what they want. And that was my general take on the whole weekend as well: there was a visible pro-Palestine presence, as was their right. It was a pretty small sliver of the overall attendance, and didn't materially impact the weekend. I won't go so far as to say one wouldn't even have noticed them without being on the lookout, but it was not some overwhelmingly or inescapable presence by any means.

As it happens, one my favorite professors at Carleton is an expert on protest politics, so it was fun to pick her brain as to what had happened on campus over the course of the year. Her take was that the student protesters, while "enthusiastic", were not especially good at protesting and lacked any robust theory of change. The encampment was mostly let alone and neither caused nor was subjected to significant trouble. The biggest "event" came when a group of about two dozen students decided to stage a sit-in inside a campus administrative building. The college responded to that by locking and evacuating the building, but a sympathetic faculty member arrived to ostentatiously unlock the building and allow the protesters inside. The administration set a deadline for the students to leave or face disciplinary action; about half left, half didn't, and the latter were put on disciplinary probation.

In terms of what the protesters were asking for, some of the major demands were (1) divestment and (2) termination of a scholarship program supporting students studying in Israel. The latter was never going to happen. The former was, in my professor's estimation, "ill-formed", mostly because Carleton has little, if any, direct investments in arms manufacturers of any sort and so the protesters were left trying to fit round pegs into square holes. As with most colleges, Carleton's endowment is primarily in funds with relatively opaque portfolios, so it's unknown who have holdings in, and it took some serious stretches to find problems with the known companies. For example, they found one company Carleton is invested in that sells, among other things, some form of air traffic management software that can have military applications and which has sales in the Middle East. The sales figures aren't further broken down by country, nor are civilian and military uses disaggregated, but by assuming that all the Middle East sales are to Israel and all the Israel sales are military, voila -- Carleton is killing kids. The level of attenuation made it hard for the college to take this seriously as an actual demand as opposed to a slogan, and so the divestment call also seems likely to be a non-starter.

I also read over how the Carleton administration had responded to campus protests over the course of the academic year. Again, the overall impression was that things were handled quite well -- there was no significant signs I saw of violence or aggressive police responses. One thing in particular that the college President did that I thought was extremely effective was that she maintained lines of open communication with the protesters, but was emphatic that these meetings and discussions were not some sort of "concession" to be extracted:

The reason I have made a point of offering meetings up front, before any sit-in or impasse, is to establish that I see communication as a given, not a negotiating tactic. I was, and am, willing to meet with you — not as a result of threats or demands, but because you are deeply committed Carleton students whose views are important to the institution and to me. 

This, to me, is exactly correct. On the one hand, it is a very bad thing when college decisions are made simply by reference to whomever is yelling the loudest. At other schools where encampments and protests had been successfully "de-escalated" by promises that the college would hear and listen to various pro-Palestine pitches, there was some measure of frustration by Jewish students who did not feel like they were given the solicitude and avenues of access and basically wondered whether the only way they could get a hearing would be to occupy a building. That's a toxic dynamic. At the same time, it is part of the Carleton President's job to listen to and be attentive to student concerns. The President should hear what the protesters are saying not because she is forced to, but because that's part of her job description. The submission is not, or should not be, the point.

The final thought that pinged around my head related to the "no donations until divestment" campaign.  Again, it does not seem like this is making a material dent in Carleton's donations. Nonetheless, we are of course seeing many cases of donors publicly withdrawing contributions to various colleges and universities unless and until they adopt or alter this or that campus policy -- consider Bill Ackman and Harvard as an especially high-profile example. These initiatives I find a bit difficult. At one level, donors of course aren't obligated to give anybody money; if something about Harvard or Carleton or wherever renders it a place they're not comfortable supporting, that's their business. On the other hand, amongst academics it is generally viewed as a very bad thing when a university does in fact alter a policy or practice due to donor demands -- they shouldn't bow to outside pressure (and I think that this belief in institutional independence is at least somewhat severable from underlying opinions about the substantive merits of the underlying demands). So we're left in this weird space where we all agree that donors are absolutely entitled to withdraw their contributions in protest, but we also think that said protests should systematically fail.

In any event, on the whole I was pleased with how things played out at Carleton, and I'm glad that most stakeholders for the most part have comported themselves in a manner that allowed for that happy and peaceable outcome.