DC Report

Attempts to read broad political conclusions into these 3 jury decisions feel like overreach

Legally speaking, the jury in the Kyle Rittenhouse trial in Kenosha, Wisc., only cleared him of the specific charges of intentionally killing two and injuring a third. Whatever way the verdict is being celebrated in conservative quarters, it was not a blanket promotion of self-defense laws as a blind for carrying semi-assault weapons in a protest over another racial policing incident.

In Charlottesville, Va., the jury decision in a lawsuit that slapped $25 million in penalties on nine white supremacists for organizing hate rioting that ended in a fatality specifically stopped short of finding broader hate crimes at play.

What we should take away from all three trials is that race is a live issue in America, critical theories taught or not. Our state and federal lawmakers and courts are ill-prepared or ill-motivated to fix the root problems.

And in Brunswick, Ga., on Wednesday, state prosecutors won guilty findings against three white defendants who chased and killed Ahmaud Arbery for jogging while Black. But race was specifically downplayed through a trial that almost never came about. The jury decision could not be read as a broad rejection of laws allowing citizen arrest.

What we should take away from all three trials is that race is a live issue in America, critical theories taught or not. Our state and federal lawmakers and courts are ill-prepared or ill-motivated to fix the root problems.

There are those who want to pat the justice system on the back a couple of times in praise that the system worked as intended. If anything, the system barely worked in each case.

Taking a Closer Look

On cue, after each individual decision, we see the pundits, the hangers-on and the official trial watchers take the verdicts as a Go sign to launch broadsides about the state of American values. It may be a valiant effort to find meaning, but these are opinions based on too little information.

In Kenosha, the prosecutors proved inadequate, and the defense managed to turn a story about a teen crossing state lines to pick up a rifle into a specific couple of moments before the gun went off – three times – in self-defense.

Donald Trump unartfully even told his followers that Rittenhouse never should have been prosecuted in the first place. The political Right is falling over itself to make Rittenhouse a hero rather than worrying about the obvious conclusion that the self-defense argument is going to spawn more incidents.

In Charlottesville, the lawsuit seeking financial penalties came about because the feds could not prosecute a criminal case.

There is no chance that a white nationalist movement will go out of business; it will continue to return, as it is in Europe, under different stripes.

And in Brunswick, Ga., the county district attorney who had original control of the case did not bring charges at all, botched the investigation and now faces criminal charges herself.

The prosecution itself flowed by several offices before a state agency took it out of the hands of local district attorneys.

It doesn’t sound like the justice system working as intended. It sounds more like something between luck and persistence to even get these cases to court.

And it will require another federal prosecution of the same circumstances to even air the arguments about race and seeing this killing as a hate crime.

Perhaps the best television comment was that the guilty verdicts in Georgia represented relief, not rejoice.

Hyper-Sensitivity on Race

We’ve become hyper-sensitized to these individual trial outcomes, just as we are to so many localized election decisions, state laws or protests that become nationalized by television. They have become our surrogates for national discussions and our leaders, our businesses, our academicians all become invested in using their pretext to push a point of view.

Just as America complains through school board protests and book bans that it is upset just to hear about Race and Divide, we are fixated exactly on Race and Divide.

So, half the country is delighted that there is no legal problem with teen Rittenhouse deploying and shooting a semi-assault rifle to defend against Black Lives Matter protesters. Half the country celebrates joyously that three self-styled enforcers are convicted for hunting down Arbery in a mostly white neighborhood.

  • The difference between conviction and blanket release may rest:
  • in the weirdness of jury makeup
  • whether the prosecution picked the right charges for this jury
  • over the procedural rulings of the individual trial judge
  • over whether there were enough citizen-generated video to show more than one version of events

The trials are not national votes about policing, race or public policies over stand-your-ground laws.

The sad truth in all these trials is that the incidents should never have happened. The teen had no business being in Kenosha in the first place. The three guys in Georgia had no business stalking Arbery.

We continue to see these aberrant trials because we have accustomed ourselves to fear of The Other and the need for self-protection and self-comfort in all things.

That, in turn, has created an interpretation of the Second Amendment to:

  • allow and encourage vigilantes
  • spread concealed carry permissions for legal guns
  • put police and protesters alike in personal danger
  • create laws that should have no need to exist, particularly with loose language that can be stretched to absurdity

It’s time for some critical justice thinking.

Is that a good guy with a gun or bad guy with a gun?

Judges increasingly rule that armed people frisked by police are not dangerous, reflecting gun rights laws that allow countrywide carrying of concealed weapons in public.

Judge Jeffrey Sutton wrote in 2015 for the Sixth Circuit that a Toledo, Ohio, man can sue a city police officer for detaining him for openly carrying a semiautomatic handgun in his neighborhood. Ohio doesn't require gun owners to produce or even carry their licenses.

Shawn Northrup and his wife were walking their Yorkshire terrier with their daughter and grandson when a motorcyclist challenged him for carrying a gun and called 911.

The assumption that mere possession of a firearm constitutes a crime is crumbling. Jeffrey Bellin, William & Mary Law School

"Ohio law permits the open carry of firearms. . . .and thus permitted Northrup to do exactly what he was doing," Sutton wrote.

Courts in Arizona, Idaho and New Mexico have also found that having a gun isn't enough on its own to conclude that someone is dangerous.

All but three states and the District of Columbia allow people to openly carry firearms in public, according to the Giffords Law Center to Prevent Gun Violence. The exceptions are Florida, Illinois and California.

"The assumption that mere possession of a firearm constitutes a crime is crumbling," said Jeffrey Bellin, a law professor at William & Mary Law School.

Giffords says open carry laws create confusion for police responding to shootings and endanger public safety.

Under the Fourth Amendment, passed as part of the Bill of Rights, people are protected from unreasonable searches and seizures. The Fourth Amendment is based on colonists' experience with smuggling investigations. Courts have interpreted this right to apply to everything from hidden cameras to searches for guns.

In 1968, when it was illegal for anyone in Ohio besides a police officer to carry a concealed firearm, the Supreme Court decided that the Fourth Amendment applied to stop-and-frisk searches. Cleveland police detective Martin McFadden testified he saw John Terry and another man who looked like they were casing a jewelry store to rob it.

McFadden stopped Terry and searched him, finding a .38-caliber revolver in his coat pocket. McFadden also found a gun on another man. In an 8-1 decision, the Supreme Court upheld the search, writing that police could search a suspect if the officer has "reason to believe that he is dealing with an armed and dangerous individual."

Police have used stop and frisk to target minorities. In New York City, more than 80% of the 4.4 million stops police made from January 2004 to June 2012 were Blacks or Hispanics. Only 10% of the people stopped were white.

Weapons were seized in about 1% of the stops.

In Philadelphia, cops are three times as likely to stop Black people while either walking or driving than white people.

Breaking down the mangled history of mainstream media and the Steele dossier

Inevitably, this week, we started to see the news media backing off – even adjusting their files – over stories published about the so-called Steele dossier a couple of years ago. The effect is to force renewed thinking about links between Donald Trump and Russia.

The reason for reconsideration about what was said at the time is the recent indictment of Igor Danchenko, a Russian analyst facing charges of lying to the FBI over information he supplied for the dossier by former British intelligence Christopher Steele and the FBI that was used as justification for initial inquiries into the all-things-Russia links with the Donald Trump 2016 campaign.

The 39-page grand jury indictment of Danchenko for making false statements was the result of more than two years of investigation by a special counsel, John H. Durham. The indictment – there has been no trial yet – is being hailed among conservatives as definitive in defending Trump from any eventual conclusions about the degree to which The Former Guy colluded, cooperated or otherwise was open to arrangements with the Russians.

So, this week, just as the media herd had flocked to the story of the Steele dossier, now the media, herd-like, is taking a step back.

Nevertheless, besides any overreach by the FBI, there are two essential truths here: First, press outlets have been careful throughout to say that large portions of the dossier have remained unverified. And second, the case outlined by Special Counsel Robert S. Mueller III outlined lots of contact and arrangements among the Trump campaign and transition team members and Russian operatives.

Adjusting Archived Articles

The Washington Post, Politico and others are adjusting stories in their electronic files to reflect yet more doubt on references to the Steele dossier, first published by BuzzFeed in January 2017. These include rewrites to show new questions or newly created omissions in already published stories to fit with new information.

The dossier contained a range of allegations about candidate Trump that were picked up and amplified in news reports, talk shows and social media.

Steele himself last month offered interviews defending his 17-memo compilation — paid for first by Republican, then-Democratic political opponents of Trump—as apolitical. Last year, Justice Department Inspector General Michael Horowitz found errors in the FBI review of data and its use in obtaining special wiretapping authority for a Trump associate. One FBI lawyer pleaded guilty to a criminal charge.

Former Attorney General William P. Barr appointed Durham to lead a wider investigation into the origins of the Russia connections. That inquiry has produced little until this recent indictment.

How the media acted in all this is now the new focus in articles in:

  • Politico, where press critic Jack Schafer discusses media transparency
  • The Washington Post, where media critic Eric Wemple has extensively looked at media coverage of the Steele dossier over time
  • The New York Times opinion essays, where Bill Grueskin, a Columbia journalism professor, considers the herd response of a too-believing media
  • Also, columnist Bret Stephens, an avowed conservative thinker, finds consistent fault with both the FBI and the media for lack of questions.

Most of the important claims in the dossier have not been proven, and some have been refuted.

But No Exoneration

Still, Wemple, among others, conclude that just because all that Steele gathered, including the notorious reports of a Trump pee tape, didn't pan out didn't mean that there wasn't plenty of fishy Russian business during the 2016 presidential campaign.

Despite all the Trump and Republican denials – containing lies and misstatements themselves, the Mueller Report detailed multiple instances of what would constitute bad, even potentially criminal behavior in that presidential campaign and the weeks following the 2016 election.

Trump has never disowned his special regard for Russian leader Vladimir Putin and went to great lengths to align U.S. policies with what have comported well with Russian outlooks over a weakened NATO, concessions in the Middle East and a view toward international chaos that has advanced Russian interests. The Trump position, simply stated, remains all about himself, about America First thinking and disowning leadership in international cooperation.

For the media, the questions raised in the various essays over the dossier are about this industry's responsibility toward rigor and about accountability when there are errors. As columnist Schafer notes, accountability requires journalists to show how their work was flawed if they choose to correct or retract. The current archive changes instead rely on rewriting historical articles to reflect more current doubt – an endless process for sure if applied to all errors with political overtones.

If Danchenko is convicted of lying to Steele and then to the FBI, we must accept that sourcing media stories to those lies creates problems over just what to believe went on in the past. But even without those lies, we should not forget that the Muller Report outlined serious abuses, whether called collusion or cooperation, between an election campaign and a foreign foe.

When Trump abandoned the Kurds

While a majority of Americans say they continue to react poorly to an apparent lack of planning in the hastened, chaotic withdrawal from Afghanistan, maybe we should be looking more closely at the distinctly Republican attempt to politicize the efforts of the Biden administration to quickly organize an unprecedented airlift rescue of 120,00 under fire as a disastrous failure.

Those same polls say we should be out of Afghanistan.

Americans are reacting to images that are embarrassing not to executing U.S. strategy.

No one, including Team Biden, would argue against the argument that withdrawal should have gone better, for all the reasons that by now we can all recount. The Afghan government and army collapsed, and within several days, created conditions that made a pullout of military and civilians dangerous and nearly impossible.

No one, including Team Biden, disputes that perhaps 100 to 200 individuals holding U.S. citizenship, shared citizenship, or special status for expedited removal, remain in Afghanistan. What Biden and company dispute is whether various diplomatic and economic levers will suffice to get those people, at least those who want out, a chance to leave under Taliban aegis.

Somehow, magically, the argument is, we should have poured more U.S. troops in, one way or another, to have them stay until all who wanted out – perhaps 300,000 Afghan citizens whom many in the U.S. don't want to provide a new home – could be airlifted out with no harm even from rogue Taliban forces or unaffiliated terrorists who showed us with a bomb and other threats that they were not heeding any Taliban orders any more than quaking under threat of American weapons.

But missing in the various explanations is a quick look back at the last two years, when Donald Trump, who now insists that any Afghan pullout he had worked out with the Taliban would be conditioned by events on the ground, pulled out from Syria and Iraq. That rewrite of recent history by Trump, former Secretary of State Mike Pompeo, and a bevy of Republican congressional leaders whose opinions were not part of any practical discussions towards pullouts, rather overlooks Trump's history here – which is still fresh in memory.

That withdrawal in Syria and Iraq abandoned Kurds – American allies in the fight against the Islamic caliphate – in the face of oncoming conflicts with the Turks, who historically have seen the Kurds as domestic rebels, if not terrorists. It will be interesting how Trump retells his own story as his all-but certain candidacy emerges.

In other words, can we look at what happened?

Abandoning Kurds

In October 2019, Trump, and Defense Secretary Mark T. Esper basically declared victory over an Islamic caliphate in Syria and Iraq and ordered a withdrawal of American forces from northern Syria. About 1,000 American troops, mostly Special Operations forces, left quickly, following a period in which the Pentagon had slow-walked compliance with Trump's directions to move towards withdrawal, remaining inside Iraq or southern Syria.

But the decision drew criticism, now apparently forgotten, that doing so effectively ceded control of the area to the Syrian government, Russia, and the Turks, and resulted in abandoning the Kurds, America's allies in actual combat in the area. By comparison, the current debate involves rescue of local Afghans who worked as interpreters, drivers, clerical help, and cooks. There was no airlift at all of civilians who had worked with the U.S. forces; indeed, Trump barred Syrian immigration totally.

And, critics made clear, the abandonment of the area would allow renegade, fleeing ISIS fighters to regroup elsewhere to fight another day. That's exactly the current week's criticism for Biden returning Afghanistan to a would-be teeming training ground for international terrorists, including those same fleeing ISIS fighters.

Whatever rebound terrorists might make, one thing was clear: American forces would not be coming to the aid of their Kurdish allies in the face of the Turkish-backed offensive. Trump went defended the abandonment, saying he was fulfilling a campaign promise to withdraw from "endless war" in the Middle East (familiar?), "appearing largely unconcerned at the prospect of Turkish forces attacking the Kurds, who include a faction he described as "natural enemies" of the Turks," and saying he would use economic leverage over the Turks to keep Turks from killing too many Kurds. He didn't.

How are we supposed to take current Republican criticism seriously now when they left American allies to die on the same battlefield?

Setting Up Afghan Problems

In November 2020, right after the election, the Trump White House announced that it would pull thousands of troops out of Iraq and Afghanistan by Jan. 15. In January 2021, as the new administration was just coming in, acting Defense Secretary Christopher Miller announced that the U.S. had withdrawn forces in Iraq and Afghanistan down to 2,500 in each war zone.

It was an unusual major policy shift announced during a lame duck period, clearly setting up problems for the incoming Biden administration.

It also was a change that defied clear instructions from Congress in its broadly bipartisan military budget bill not to use that money to withdraw forces in either Afghanistan or Iraq below 4,000 without providing clear evidence to Congress about the viability of the plan.

In February 2020, Pompeo and Trump completed a negotiation with the Taliban, after even considering inviting the Taliban leaders to Camp David. So much for outrage over Biden now talking with the Taliban about security arrangements during the pullout.

As one analyst wrote in a New York Times op-ed this week, "Trump agreed to withdraw all coalition forces from Afghanistan in 14 months, end all military and contractor support to Afghan security forces and cease "intervening in its domestic affairs." He forced the Afghan government to release 5,000 Taliban fighters and relax economic sanctions. He agreed that the Taliban could continue to commit violence against the government we were there to support, against innocent people and against those who'd assisted our efforts to keep Americans safe. All the Taliban had to do was say they would stop targeting U.S. or coalition forces, not permit Al Qaeda and other terrorist organizations to use Afghan territory to threaten U.S. security and subsequently hold negotiations with the Afghan government.

Not only did the agreement have no inspection or enforcement mechanisms, but despite Trump's claim that "If bad things happen, we'll go back with a force like no one's ever seen," the administration made no attempt to enforce its terms.

Read it. There are no conditions on the ground outlined.

They Agree, Even if We Don't

Biden's arguments are about what we are doing overall in Afghanistan. So are Trump's.

For good or bad, the two political ends are arguing over something for which they both agree on the fundamentals. We can, and are, having a ruckus over how well the mechanics of pulling out went, but few Republican opponents are suggesting that we re-commit the kind of numbers to Afghanistan to make a major difference. From polling and endless interviews, it is clear that Americans don't have the stomach for generations-long wars to prevent possible terrorism, insisting instead that a vibrant and strong military and an effective intelligence array can respond as needed, anywhere in the world.

We can and will argue endlessly about that too.

But we should dismiss this notion that Trump, the magician, was going to extract hundreds of thousands from Afghanistan in any manner that was without the messiness of these last two weeks. And we should dismiss the defensiveness of the Biden team in insisting that the inevitability of chaos absolved them from better preparations about the processing and withdrawal of populations of this size from halfway around the world.

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J.D. Vance thinks George Washington wasn’t fit to be president

Unless we are pursuing politics for a living, we generally try to avoid spending actual time outside of elections thinking about individual candidates.

That is, we ignore them unless they do and say things that are just so nuts that we question whether we live on the same planet.

Enter venture capitalist, author and Ohio Republican Senate candidate J.D. Vance, the emergent conservative in next year's race who has landed on a core issue. Democrats have "become controlled by people who don't have children," he says.

Thus, as he explained in a speech to the Future of American Political Economy Conference hosted by the Intercollegiate Studies Institute, the politicians running the country do not have a "personal indirect stake" in improving it because they do not have children.

It's not quite Jewish space lasers starting wildfires in the West or seeing Capitol rioters as "loving people," but it comes close.

Vance himself adopted belated love for the Donald Trump he used to detest. He noted that potential presidential candidates in the Democratic Party including Vice President Kamala Harris, Transportation Secretary Pete Buttigieg, Sen. Cory Booker (D-N.J.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) do not have children.

Don't Harris' step-children count? What about adopted kids?

Why, he asks publicly, is it just a "normal fact of American life that the leaders of our country should be people who don't have a personal indirect stake in it via their own offspring, via their own children and grandchildren," Vance asked.

He says he was not referring to people who are unable to have children.

In Vance's world, apparently, only pols with kids who have their DNA can think seriously about the national debt or committing U.S. troops to foreign locations or whether we should erect, and I choose that word carefully, Border Walls.

By the way, George Washington had no children of his own, but did have a step-daughter via Martha. But isn't he father of the country? Didn't he sleep around?

Children, No Children?

Wait a minute! Isn't the Republican line on Democrat Joe Biden a constant near-impeachment because he does have a son Hunter who possesses an unerring ability to stick his business foot in his famous-name-influenced mouth?

And is Vance really arguing here that Trump, who loves to claim that he knows nothing of how government actually works or how policy is made, is more responsible because he has three millionaire children who run his businesses and violate every ethical line government lawyers can invent?

Skipping over the fact that Harris has two step-children from her husband Doug Emhoff's previous marriage, the Vance doctrine seems to be that parents who go to the polls should have more power than adults who do not have children.

"When you go to the polls in this country as a parent, you should have more power, you should have more of an ability to speak your voice in our Democratic republic, than people who don't have kids," he said.

"Let's face the consequences and the reality; if you don't have as much of an investment in the future of this country, maybe you shouldn't get nearly the same voice."

So, parents with several children should get yet more votes, right?

Maybe the Republican stereotype of a welfare queen mom with a hive of kids should then have multiple votes as opposed to say a single, unattached big financial guy and would-be predator like, say, Jeffrey Epstein, who long was befriended by Donald Trump and Bill Clinton. Is that what Vance wants?

In a conversation with conservative media personality Charlie Kirk earlier this year, Vance explained, "We need more American children because American families, American children are good for us.

"They make fathers more invested — there's all kinds of research on this. They make our economy more dynamic. They make fathers more empathetic, more invested in their communities." And so they should have more votes?

But, he noted, he is always accused of being racist for elevating new children over population increases through immigration because "just no comparison between the positive effects of children and the positive effects of an immigrant."

Immigrants apparently don't have children, but then again, non-citizens don't vote at all, unless Donald Trump is counting their imagined ballots as part of fraudulent elections.

So, is Vance just arguing that we need more white children, more white politicians with children? Or is he actually ready to acknowledge that demographic shifts show more children in non-white families?

Who's Got Children?

Just as a reality check: The National Opinion Research Center at the University of Chicago conducts a biennial national General Social Survey. It is a broad poll of Americans on a range of social issues that includes questions specifically about politics and children.

The most recent data says conservatives are more likely to have children than liberals — and are also more likely to have more children—but not children at home because conservatives also tend to be older.

Families with children at home are more or less equal between liberals and conservatives.

None of that explains how people vote or how they view the current culture wars.

Do you have to have aging parents to be able to vote about Medicare? Do you have to be an excluded voter of color to consider national questions of voting rights?

If we were really voting with children in mind, wouldn't we be seeing wide votes of support in Congress for widening child care, adding to food stamps, public education and health care?

As a party, Republicans, kids or not, obviously don't think so on any of these issues.

Maybe Vance should be graded on his support for actual policies relating to the well-being of children and the future, from economic justice to climate.

Vance believes that conservatives "have lost every single major cultural institution in this country. Think about it. Big Finance, Big Tech, Wall Street, the biggest corporations, the universities, the media and the government…

"There is not a single institution in this country that conservatives currently control, but there is one of them, just one, that we might have a chance of actually controlling in the future and that's the constitutional republic that our founders gave us," Vance said.

"My argument is that we need to fight woke capital, woke corporations and the governments that enable them, because we can't win anywhere else."

Maybe we should skip the middleman and give the votes directly to kids.

Vance said that the culture war is a class war against middle- and working-class Americans, and also claimed that it's an economic war against conservatives.

Vance wrote a memoir called Hillbilly Elegy, about the Appalachian values of his Kentucky family and their relation to the social problems of his hometown of Middletown, Ohio, where his mother's parents moved when they were young. He now is a principal at Peter Thiel's venture capital firm, Mithril Capital, far from Appalachia, where he took interest in biotechnology issues before entering a primary to succeed retiring Sen. Rob Portman.

Thankfully, he has two sons and therefore can be a serious candidate.

NRA affiliate's challenge to strict New York handgun law could trigger a new Constitutional test

Federal judges have rejected most Second Amendment arguments of gun rights activists since a 2008 landmark case. Now the Supreme Court will hear a case that could invalidate state laws restricting who can be armed on our streets.

The New York State Rifle & Pistol Association, which is affiliated with the NRA, and two men who couldn't get gun permits in New York, sued. The judges Donald Trump put on the Supreme Court – Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh – are all endorsed by the National Rifle Association.

"I don't think people really understand the gravity of this case," said Kris Brown, president of the Brady Campaign to Prevent Gun Violence. "It would upend the very framework of the country's public safety laws."

New York is one of eight states that limit who can carry a gun in public. The others are California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

New York's law was passed in 1911 after the attempted assassination of a mayor and the murder of novelist David Graham Phillips.

New York's Sullivan Act, named after Tammany Hall politician Timothy Sullivan, was passed in 1911 after the attempted assassination of a mayor and the murder of novelist David Graham Phillips.

New York also has the second-lowest rate of deaths from gun violence in our nation. In 2019, about four people per 100,000 died from gun violence in New York. Alaska had the highest death rate.

"Gun violence has only worsened during the pandemic, and a ruling that opened the door to weakening our gun laws could make it even harder for cities and states to grapple with this public health crisis," said Eric Tirschwell. He is managing director of Everytown Law which represents survivors of gun violence in lawsuits against the gun industry and gun dealers.

People seeking licenses to carry concealed weapons in New York must show "a special need for self-protection." The licensing officer for Rensselaer County rejected attempts by Robert Nash and Brendan Koch, who are also plaintiffs in the case, to get gun permits.

Bars Carrying Handguns Outside the Home

The association asked the Supreme Court to decide whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside their homes for self-defense.

In 2008, the Supreme Court ruled that that the District of Columbia must issue security guard Dick Heller a license to allow him to keep his gun at home. The city had banned handguns.

The justices affirmed prohibiting possession of firearms by felons and the mentally ill and supported laws forbidding the carrying of firearms in like schools and government buildings.

Since the Heller case, federal and state courts have generally used a two-part test in more than 1,000 gun cases, looking at whether the activity is protected by the Second Amendment and then scrutinizing it. Judges have used this test to reject most of the gun rights claims.

Court Could Set New Constitutional Test

"From a constitutional law perspective, the big question is whether the justices will announce a new test for the constitutionality of gun laws going forward," said Duke law professor Joseph Blocher. "If the Supreme Court decides to replace that consensus with some other test, like one based solely on text, history, and tradition, then everything changes."

Paul Clement, the lead attorney in the case, was a clerk at the Supreme Court at the same time as Kavanaugh and testified at Kavanaugh's Senate confirmation hearing. Clement was solicitor general under former President George W. Bush and has argued more Supreme Court cases since 2000 than any other attorney.

Clement represented the NRA in a lawsuit by former janitor Otis McDonald against Chicago. That 2010 Supreme Court decision, which built on the Heller case, allowed people in Chicago to keep guns in their homes for self-defense, ending the city's handgun ban of nearly 30 years.

The association's attorneys argue that the Second Amendment also allows people to carry guns outside their homes for self-defense.

"The Revolutionary War was not won with muskets left at home; nor were the Minutemen saddled with the need to return home before achieving readiness for action," they wrote.

But even during the Wild West, frontier towns typically allowed only lawmen to carry guns in public.

A 2018 Stanford paper found that right-to-carry laws are associated with an increase of 13-15% higher violent crime rates a decade later.

Gangs have used right-to-carry laws by having gang members with clean criminal records get permits and then hold the guns after they are used. Darrail Smith of Wisconsin was stopped three times carrying guns away from crime scenes before he was charged with criminal conspiracy.

Estimated 100,000-plus guns a year belonging to permit holders are stolen.

The whole world could have been vaccinated already

The big drug companies are killing people.

I get to say this about the drug companies, now that President Biden has said that Facebook is killing people because it was allowing people to use its system to spread lies about the vaccines. There is actually a better case against the drug companies.

After all, they are using their government-granted patent monopolies, and their control over technical information about the production of vaccines, to limit the supply of vaccines available to the world. As a result, most of the population in the developing world is not yet vaccinated. And, unlike the followers of Donald Trump, people in developing countries are not vaccinated because they can't get vaccines.

The TRIPS Waiver Charade

The central item in the story about speeding vaccine distribution in the developing world is the proposal put forward at the WTO last October (yes, that would be nine months ago), by India and South Africa, to suspend patents and other intellectual property rules related to vaccines, tests, and treatments for the duration of the pandemic. Since that time, the rich countries have been engaged in a massive filibuster, continually delaying any WTO action on the measure, presumably with the hope that it will become largely irrelevant at some point.

Suppose that during World War II a military contractor developed a new sonar system to detect German submarines. What would we do if this company refused to share the technology with the U.S. government?

The Biden administration breathed new life into the proposal when it endorsed suspending patent rights, albeit just for vaccines. This is the easiest sell for people in the United States and other rich countries since it is not just about humanitarian concerns for the developing world. If the pandemic is allowed to spread unchecked in the developing world it is likely only a matter of time before a vaccine-resistant strain develops. This could mean a whole new round of disease, death, and shutdowns in the rich countries until a new vaccine can be developed and widely distributed.

After the Biden administration indicated its support for this limited waiver, many other rich countries signed on as well. Germany, under longtime chancellor Angela Merkel, has been largely left alone to carry water for the pharmaceutical industry in opposing the vaccine waiver.

I had the chance to confront the industry arguments directly last week in a web panel sponsored by the International Association for the Protection of Intellectual Property (link included when it becomes available). It's always educational to see these arguments up close and real people actually making them.

The first line of defense is that the waiver of patent rights by itself does not lead to any increase in vaccine production. This is of course true. Vaccines have to be manufactured, eliminating patent rights is not the same thing as manufacturing vaccines.

But once we get serious, the point is that many potential manufacturers of vaccines are being prevented from getting into the business by the threat of patent infringement suits. In some cases, this might mean reverse-engineering the process, something that might be more feasible with the adenovirus vaccines produced by Johnson and Johnson and AstraZeneca, than with the mRNA vaccines. The manufacturing process for these vaccines is similar to ones already used by manufacturers in several countries in the developing world, as well as several in the rich countries that are not currently producing vaccines against the pandemic.

Another possible outcome from eliminating patent rights is that the drug companies may opt to do more voluntary licensing agreements under the logic that it is better to get something than nothing.

If manufacturers use reverse engineering to produce vaccines, the patent holders get nothing. They would be much better off with a limited royalty on a licensing agreement, even if it is less than they could have expected if they had been able to maintain an unchecked patent monopoly.

(Editor: Reverse engineering is how startup computer companies built "clones"of the early PCs or personal computers. They bought IBM personal computers and paid one set of engineers to take it apart and describe what they found. Then a second set of engineers used the descriptions to build a personal computer. Voila no royalties to IBM.)

The other route that suspending patent monopolies may open is one where former employees of the pharmaceutical companies may choose to share their expertise with vaccine manufacturers around the world. In almost all cases these employees would be bound by non-disclosure agreements. This means that sharing their knowledge would subject them to substantial legal liability. But some of them may be willing to take this risk. From the standpoint of potential manufacturers, the patent waiver would mean that they would not face direct liability if they were to go this route, and the countries in which they are based would not face trade sanctions.

Open-Sourcing Technology

While suspending patent rights by itself could lead to a substantial increase in vaccine production, if we took the pandemic seriously, we would want to go much further. We would want to see the technology for producing vaccines fully open-sourced. This would mean posting the details of the manufacturing process on the web, so that engineers all over the world could benefit from them. Ideally, the engineers from the pharmaceutical companies would also be available to do webinars and even in-person visits to factories around the world, with the goal of assisting them in getting their facilities up-to-speed as quickly as possible.

The industry person on my panel didn't seem to understand how governments could even arrange to have this technology open-sourced. He asked rhetorically whether governments can force a company to disclose information.

As a legal matter, governments probably cannot force a company to disclose information that it chooses to keep secret. However, governments can offer to pay companies to share this information. This could mean, for example, that the U.S. government (or some set of rich country governments) offer Pfizer $1-$2 billion to fully open-source its manufacturing technology.

Suppose Pfizer and the other manufacturers refuse reasonable offers. There is another recourse. The governments can make their offers directly to the company's engineers who have developed the technology. They can offer the engineers say $1-$2 million a month for making their knowledge available to the world.

This sharing would almost certainly violate the non-disclosure agreements these engineers have signed with their employers. The companies would almost certainly sue engineers for making public disclosures of protected information. Governments can offer to cover all legal expenses and any settlements or penalties that they faced as a result of the disclosure.

The key point is that we want the information available as soon as possible. We can worry about the proper level of compensation later. This again gets back to whether we see the pandemic as a real emergency.

Suppose that during World War II Lockheed, General Electric, or some other military contractor developed a new sonar system that made it easier to detect the presence of German submarines. What would we do if this company refused to share the technology with the U.S. government so that it was better able to defend its military and merchant vessels against German attacks?

While that scenario would have been almost unimaginable – no U.S. corporation would have withheld valuable military technology from the government during the war – it is also almost inconceivable that the government would have just shrugged and said "oh well, I guess there is nothing we can do." (That's especially hard to imagine since so much public money went into developing the technology.) The point is that the war was seen as a national emergency and the belief that we had to do everything possible to win the war as quickly as possible was widely shared. If we see the pandemic as a similar emergency it would be reasonable to treat it in the same way as World War II.

Perhaps the most interesting part of this story is what the industry representative saw as the downside of making their technology widely available. The argument was that the mRNA technology was not actually developed to be used against Covid. Its value against the pandemic was just a fortunate coincidence. The technology was actually intended to be used for vaccines against cancer and other diseases.

From the industry perspective, the downside is that if they made their technology more widely available, then other companies may be able to step in and use it to develop their own vaccines against cancer and other diseases. In other words, the big fear is that we will see more advances in health care if the technology is widely available, pretty much the exact opposite of the story about how this would impede further innovation.

I gather most of us do not share the industry's concerns that open-sourcing technology could lead to a proliferation of new vaccines against deadly diseases, but it is worth taking a moment to think about the innovation process. The industry has long pushed the line that the way to promote more innovation is to make patent and related monopolies longer and stronger. The idea is that by increasing potential profits, we will see more investment in developing new vaccines, cures, and treatments.

But these monopolies are only one way to provide incentives, and even now they are not the only mechanism we use. We also spend over $40 billion a year in the United States alone on supporting biomedical research, primarily through the National Institutes of Health. Most of this money goes to more basic research, but many drugs and vaccines have been developed largely on the government dime, most notably the Moderna vaccine, which was paid for entirely through Operation Warp Speed.

If we put up more public money, then we need less private money. I have argued that we would be best off relying pretty much entirely on public money. This would take away the perverse incentives created by patent monopoly pricing, like the pushing of opioids that was a major factor in the country's opioid crisis. It would also allow for the open-sourcing of research, which should be a condition of public funding. This could create the world the industry fears, as many companies could jump ahead and take advantage of developments in mRNA technology to develop vaccines against a variety of diseases.

But even if we don't go the full public funding route, it is pretty much definitional that more public funding reduces the need for strong patent monopolies to provide incentives. If we put up more dollars for research, clinical testing, or other aspects of the development process, then we can provide the same incentive to the pharmaceutical industry with shorter and/or weaker monopoly protections.

In the vaccine context, open-source means not only sharing existing technology, but creating the opportunity for improving it by allowing engineers all of the world to inspect production techniques. While the industry would like to pretend that it has perfected the production process and possibilities for improvement do not exist, this is hardly plausible based on what is publicly known.

To take a few examples, Pfizer announced back in February that it found that changing its production techniques could cut production time in half. It also discovered that its vaccine did not require super-cold storage. Rather, it could be kept in a normal freezer for up to two weeks. In fact, Pfizer did not even realize that its standard vial contained six doses of the vaccine rather than five. This meant that one sixth of its vaccines were being thrown into the toilet at a time when they were in very short supply.

Given this history, it is hard to believe that Pfizer and the other pharmaceutical companies now have an optimal production system that will allow for no further improvements. As the saying goes, when did the drug companies stop making mistakes about their production technology?

Has Anyone Heard of China?

It is remarkable how discussions of vaccinating the world so often leave out the Chinese vaccines. They are clearly not as effective as the mRNA vaccines, but they are nonetheless hugely more effective in preventing death and serious illness than no vaccines. And, in a context where our drug companies insist that they couldn't possibly produce enough vaccines to cover the developing world this year, and possibly not even next year, we should be looking to the Chinese vaccines to fill the gap.

China was able to distribute more than 560 million vaccines internally, in the month of June, in addition to the doses it supplied to other countries. Unless the country had a truly massive stockpile at the start of the month, this presumably reflects capacity in the range of 500 million vaccines a month. The Chinese vaccines account for close to 50 percent of the doses given around the world to date.

It would be bizarre not to try to take advantage of China's capacity. There obviously are political issues in dealing with China, but the U.S. and other Western countries should try to put these aside, if we are going to be serious about vaccinating the world as quickly as possible.

'Mistakes Were Made'—NOT Our National Motto

If a vaccine-resistant strain of the coronavirus develops, and we have to go through a whole new round of disease, deaths, and shutdowns, it will be an enormous disaster from any perspective. The worst part of the story is that it is a fully avoidable disaster.

We could have had the whole world vaccinated by now, if the United States and other major powers had made it a priority. Unfortunately, we were too concerned about pharmaceutical industry profits and scoring points against China to go this route.

Nonetheless, we may get lucky. Current infection rates worldwide are down sharply from the peaks hit in April, but they are rising again due to the Delta variant. It is essential to do everything possible to accelerate the distribution of vaccines. It is long past time that we started taking the pandemic seriously.

How to order plans for an untraceable plastic gun

A Texas organization, Defense Distributed, has posted plans online to help anyone—including terrorists and criminals—make plastic guns that can't be traced.

The move came after a Trump-appointed federal Judge Ryan Nelson wrote an April decision for the three-judge panel of the Ninth Circuit Court of Appeals clearing the way for sales of the gun plans. Judge Robert Whaley dissented.

"Congress expressly precluded review of the relevant agency actions here," wrote Nelson, a longtime member of the Federalist Society.

Nelson ordered the dismissal of a lawsuit challenging Trump rules allowing plans for 3D-printed guns to be sold on the internet.

Buyers of the gun plans don't have to undergo background checks. The guns don't have serial numbers so they can't be traced.

Our nation already has the 32nd-highest death rate from gun violence in the world, almost four deaths per 100,000 people in 2019. The highest death rate in the United States is the District of Columbia with 18.5 deaths per 100,000.

If deaths due to armed conflict are excluded, the United States is worse than even nations like Lebanon and Afghanistan. The countries with higher gun death rates in the United States are countries troubled by gangs and drug trafficking like El Salvador and Guatemala.

President Joe Biden has said he could take executive action to limit the availability of 3D guns.

In June, Sen. Edward Markey (D-Mass.) and Sen. Robert Menendez (D-N.J.) introduced the 3D Printed Gun Safety Act which would prohibit distributing blueprints and instructions online for printing guns.

The State Department previously argued that the proliferation of 3D-printed guns could provide terrorist and criminal organizations with access to dangerous firearms. But under Trump, who had at least $16.3 million in help from the National Rifle Association in his re-election effort, the department flip-flopped.

Twenty-two states and the District of Columbia sued the Trump administration in January 2020 to block the plans from being posted online. They said 3D-printed guns would seriously compromise security in places like courthouses, schools, prisons, airports and stadiums that rely on standard metal detectors.

Arkansas native Cody Wilson, an English major who dropped out of law school, founded Defense Distributed. Wilson is also a registered sex offender because he pled guilty to injury to a child, a felony, in a case involving a 16-year-old girl. He can't buy or sell weapons at gun stores.

Defense Distributed contends that its blueprint files are a form of speech and efforts to block their release violate the First Amendment. Its supporters include the Reporters Committee for Freedom of the Press.

The district judge, Richard Jones, had ordered a preliminary injunction in the case, writing that "the proliferation of 3-D gun files on the internet likely renders ineffective arms embargoes, export controls, and other measures used to restrict the availability of uniquely dangerous weapons."

How the Biden administration's foot-dragging is killing the arts

Few organizations suffered more than nonprofit performing arts venues in the past 16 months of the pandemic. Continued uncertainty surrounds reopenings, in part because of the achingly slow government response in delivering money needed to resume performances.

Unlike restaurants and bars, which have minimal costs to resume operations if they held onto their space and inventory, many performing arts venues say they can't just open up because they need money to rehearse, build sets, advertise, and produce events.

Live performance charities big and small are in deep financial holes. The Metropolitan Opera in New York faces a colossal shortfall of $150 million, Operawire reported. The Opera projected to bring in $49 million in box office revenue this fall, $88 million less than its earnings from the 2019-2020 season that was halted by COVID-19.

Live entertainment venues were among the first businesses to close, and they will almost certainly be among the last to reopen. Sen. Amy Klobuchar

This estimation last year came alongside Metropolitan Opera General Manager Peter Gelb's prediction that it would take years for the company to rake in its usual totals again due to the bleak outlook for tourism, according to Operawire.

The Bootleg Theater, a staple of Los Angeles' arts and cultural scene for over two decades, was not as lucky. It was forced to close its doors just as the city began to reopen.

"We are in a public health and economic crisis, and the live entertainment industry has been particularly hard-hit during the coronavirus pandemic," Sen. Amy Klobuchar (D-Minn.) said on the Senate floor in December. "These live entertainment venues were among the first businesses to close, and they will almost certainly be among the last to reopen."

Half Closed

Almost half of the nonprofit arts and cultural organizations with in-person programming remain closed, and roughly half of those have no scheduled return date, Americans for the Arts found in a June 28 survey.

Many of those nonprofits said they lack funds to reopen. More than two-thirds of these lightly financed arts organizations said they expect that raising enough money to open the doors again will take three months or more, according to the survey.

In an updated report two weeks later, Americans for the Arts reported 39% of organizations with in-person programming still remained closed to the public. Most of these groups aim to resume in-person activities this year.

Many nonprofit theaters have no working capital. Like millions of cash-strapped Americans, they struggle from performance to performance, not unlike those who live paycheck to paycheck with no savings.

"When you produce a show, you're banking money to produce the next show," said Chris Serface, President of the American Association of Community Theaters.

Serface is also managing artistic director for Tacoma (Wash.) Little Theatre. "We've been dark for a long time, so we don't have that capital to just go ahead and produce a show again," Serface told me.

As if financial instability was not enough to endure, even though Congress appropriated money for live performance venues, so far only a trickle of cash flows to them, Serface and others said.

The Save Our Stages Act — a bipartisan bill spearheaded by Klobuchar and Sen. John Cornyn (R-Texas) — was included in the $900 billion stimulus bill last December. It allocated $15 billion for struggling arts and cultural locales through the Shuttered Venue Operators Grant program.

Slowdown at the SBA

The arts and similar grants, administered by the Small Business Administration, were supposed to be easier to apply for than the Paycheck Protection Program loans.

The rollout was shaky at best. Weeks after the early April start date, the SBA blamed "technical difficulties" for not approving requests and sending funds. SBA reported on June 9 it had issued grants to less than 1% of more than 14,000 applicants.

Christopher Mannelli, executive director of the Geva Theatre Center in Rochester, N.Y., applied for a grant in April. It took two months for SBA to notify him that the agency had reviewed his paperwork.

"It's supposed to be emergency funding, and it certainly has not arrived in a timely manner at all — and all of us have emergency needs," Mannelli said.

The SBA's latest report detailed a significant improvement in the distribution of grants because the program got off to such an atrocious start.

The agency has distributed almost 4,000 grants since the earlier debacle at the beginning of June, according to its July 6 report. That's less than a third of the grants sought.

And aside from the bipartisan criticism voiced by Cornyn and Klobuchar of SBA for its botched implementation, there is no indication of more federal help soon.

"I fully expect the performing arts field to feel this is a two-to-three-year pandemic," said Tamara Keshecki, a research associate at UMass Amherst School of Public Policy. She is also on the New York Independent Venue Association board, which represents independent performing arts groups and organizations based in the state.

"It's not going to be like 'we got some grant money, we reopen, and everything goes back to business as normal,'" Keshecki said.

In June, Washington state lifted most COVID-19 restrictions, joining virtually all other state governments in allowing enterprises to function at full capacity. But Serface said that doesn't guarantee audiences will resume buying tickets.

His theater welcomed some people to its summer youth program at the beginning of July, but Serface said there's no way to predict how willing audiences will be to return.

Still, the Tacoma theater plans somehow to resume shows in the fall, when the production season usually begins.

"That's the big question none of us really know the answer to because it's different all across the country," Serface said. "There's a lot of variables that are making a lot of people nervous, and those are some of the struggles we're all going to face going forward."

New York throws a parade -- and essential workers say ‘Fuhgettaboutit!’

New York City threw essential workers a ticker tape parade along the canyon of heroes last week. And somehow, Gotham's gilded oligarchs were spared the unsavory sight of marchers in matching "I Saved Your Asses From COVID-19 And All I Got Was This Lousy T-Shirt" gear.

Exhausted healthcare workers along with their counterparts in children's services, transportation, retail and other frontline sectors appeared too giddy about surviving the one-time epicenter of Covid and putting the worst of the ongoing pandemic behind them to pass up a well-deserved shot at the biggest block party NYC has to offer. Marching together, workers knew they deserved all the accolades the tired town could muster.

Yet even this most forgiving atmosphere where heaps of blue and orange confetti were periodically blasted from the backs of municipal pickup trucks couldn't obscure the level of worker resentment and anger roiling just beneath the highly produced pomp and pageantry.

Parade placards declaring, "Not All Heroes Wear Capes" and "Our Labor Saved Lives" carried an edge. Hearst drivers, embalmers and cemetery staffers made room on their proud banner for an impromptu "FDNY EMS Fair Pay Now!" sign.

As much as he would've liked, hapless outgoing Mayor Bill de Blasio still couldn't get everybody on a float.

The American Federation of State, County and Municipal Employees' District Council 37 [DC 37, AFSME] — the largest public employees union in New York City with some 150,000 members — told Hizzoner just what they thought of his self-serving party by simply not showing up.

Other unions joining DC 37 in its parade boycott, including those representing the Fire Department's Bureau of Emergency Medical Services [EMS] as well as the United Probation Officers Association [UPOA], also had no stomach for the naked hypocrisy of patting bone-weary workers on the back while at the same time continuing to deny them fundamentals including pay parity, early retirement and a fair contract.

Fair Labor Contracts

"If the mayor wants to celebrate the frontline city workers who put their health and safety on the line to keep New York running at the height of the pandemic, he can start by ensuring every city worker has a fair contract that pays a living wage," the UPOA said in a statement.

Just a week before the "Hometown Heroes" parade, some 200 retired city workers took to the streets of lower Manhattan to protest a secretive backroom deal swapping out their Medicare healthcare plans with private Medicare Advantage ones costing them thousands of dollars a year.

"I worked 34 years," retired special education teacher and United Federation of Teachers [UFT] member Gloria Brandman said at the scene. "I was promised Medicare and supplements paid for by the city."

Still Waiting

Nationwide, frontline workers who risked all throughout the pandemic are still waiting for fundamental job protections, vital healthcare coverage, a $15 an hour minimum wage, the right to organize and enforceable workplace safety standards to protect them against the further spread of Covid and its emerging variants.

What they are getting instead is an economic ass-whooping consisting of stagnant wages, vanishing unemployment benefits and rising consumer prices.

The sweet confections baked into ticker tape parades and the like are meant to distract from all that pain and suffering while the country's elite continue to gorge themselves on the $1.6 trillion they've amassed during the pandemic.

In Detroit, for instance, the city's essential workers are being feted to "Thank You Tuesdays" at Comerica [Bank] Park, where home game festivities include special scoreboard shoutouts and base pads reading, "Thank You Frontline Heroes."

Michigan Gov. Gretchen Whitmer, meanwhile, declared June 17, "Essential Worker Appreciation Day" and called on the feds to issue a one-shot bonus for frontline workers.

Liz Hanbidge, a state representative from Harrisburg, Pa., went even further this past spring, introducing a resolution in her state's General Assembly designating 2020 as "Frontline Workers Appreciation Year."

At least Hanbindge backed up the empty accolades with a proposal requiring large businesses to extend hazard pay to essential workers, along with a few other limited pro-worker measures including one offering supplemental payments to frontline workers still earning less than $15 an hour.

But elected officials aren't exactly shutting down traffic or breaking out the yellow vests in order to get working men and women in this country what they need for themselves and their families.

Embattled Governor

Back in New York, where embattled Gov. Andrew Cuomo is doing his best to create his own blue collar bone fides with a problematic new monument at Manhattan's Battery Park dedicated to essential workers, it's much the same thing.

Ahead of the July 7, "Hometown Heroes" parade, City Council Member Margaret Chin expressed her "hope" that "many eyes" have been opened during the pandemic about the "value of these [essential] jobs."

"As the city reopens we must continue to respect and advocate for these workers," the lawmaker, who represents many parts of lower Manhattan including Battery Park City, declared.

As we say in NYC — "That, and $2.75 will get me on the subway."

Hopes and prayers are nothing in the face of an oligarchic onslaught machine that exists to keep exploited farmworkers hidden and out of sight; hard-pressed Amazon employees too exhausted and afraid to raise their heads; and pretty much everyone else in the good 'ol USA in a permanent somnambulistic stupor.

Jeff Bezos, Mark Zuckerberg, Elon Musk and other vaunted captains of industry are among the few who always have their eyes wide open.

When the monied interests oppose unionization, livable wages and universal healthcare — they know it's not about the Benjamins. These economic royalists know it's all about preserving their lofty perches by continuing to deprive working men and women of economic autonomy, strength and power.

Of course, Bezos and the rest of the oligarchic elite have more than enough money to pay workers better wages and benefits [for crying out loud, they're shooting themselves into outer space]. What they absolutely can't afford, however, is to lift their boots off our necks. Not even a little bit.

Public exhibitions and monuments like the ones popping up during the vaccination rollout have always been very powerful tools — whether created to instill particular narratives in the minds of the masses favorable to the ruling elite or making the masses believe the ruling elite actually cares about the concerns of workers.

That statue of Robert E. Lee that recently came down in Charlottesville, Va., was erected a-hundred-some-odd-years-ago with a clear-eyed purpose. In this case, to obscure the ugly fact that the Civil War was fought to perpetuate slavery and not at all about protecting "states rights," "honoring southern heritage," or any other such nonsense.

And despite the genuine earnestness of the participants, Mayor Muriel Bowser's decision to allow "BLACK LIVES MATTER" to be painted on 16th Street in Washington, DC also sought to accomplish the ruling elite's aim of placating the masses without, you know, actually doing anything to stop fascist police from murdering unarmed Black and Brown people.

Either way, it seems like you still can't go wrong with a statue or parade if you want to try and keep the working class in check.


Happy Holidays!