Cato At Liberty

As I argue in my recently published policy analysis here at Cato, the American-led war on terror has clearly failed. Unfortunately, rather than accept the obvious fact that the campaign was badly misguided and focusing homeland security efforts in more fruitful areas, the Trump administration appears ready to embrace, and perhaps even to escalate, the American commitment in the Middle East. Though President Trump himself has frequently voiced concerns about nation building in Iraq and the mission in Afghanistan, few of his senior advisers appear to share his worries. And sadly, few voices from the foreign policy establishment have questioned the need for continued American intervention.

The near total lack of debate begs a simple question: Why do so many smart people support the continuation of a strategy despite its abject failure over sixteen years and in the absence of anything even remotely approaching a new theory of victory?

Though there are undoubtedly many different contributing factors, one important cause is the influence of several mutually reinforcing fallacies about terrorism and the use of force.

The first of these is the “political will” fallacy. This is the misguided idea that the United States can outlast the Taliban, Al Qaeda, ISIS, and other local actors simply by illustrating sufficient political resolve. Once the terrorists and insurgents understand that the United States is truly  “in it to win it” they will admit defeat. The reality, however, is that resolve is not something the White House can create. Resolve is a force that stems from how meaningful the objective is to a nation and how much its people are willing to pay to achieve it.

Given this, America’s adversaries clearly enjoy a decided advantage. Local actors like the Taliban have a tremendous stake in the outcome in Afghanistan – it is their home, after all. Americans, on the other hand, are rightly dubious of the value of slugging it out for a country of little significance to their security. Thus, much as happened during the Vietnam War, no matter how much firepower the United States brings to the fight local adversaries like the Taliban will always have greater resolve to keep fighting.

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There’s been some buzz this week about a new poll that, according to its creators, shows overwhelming support for Dodd-Frank and the Consumer Financial Protection Bureau (CFPB). A stunning 74 percent of respondents, the creators claim, support Dodd-Frank while 77 percent support the CFPB.

But what has not been as widely reported is how skewed the questions were. Given the questions, it’s surprising there was not more support for Dodd-Frank and the CFPB. 

Consider the question that resulted in the 74 percent support Dodd-Frank figure:

Now please listen to this description of the Wall Street Reform law that was passed after the financial crisis. In addition to requiring federal oversight of a larger range of financial companies, this law also prohibits banks from certain risky practices, and created the Consumer Financial Protection Bureau to fight against abusive financial practices that hurt consumers. It also bans taxpayer-funded bailouts of large banks and financial companies and, instead, sets up a system where investors rather than taxpayers bear the losses of bank failures. Please tell me whether, overall, you favor or oppose this law.

No more taxpayer-funded bailouts? No more socialized losses and privatized gains? Sign me up! I would love a law that does this. Except the very reason that many people, including me, oppose Dodd-Frank is because of the belief that it does just the opposite, that it entrenches the too big to fail concept and makes bailouts more likely down the road. The debate over Dodd-Frank is not pro-bailouts versus anti-bailouts, or pro-accountability for bad business choices versus anti-accountability. No one is advocating for bailouts or taxpayer-funded losses. The debate is over whether the particular provisions in Dodd-Frank are likely to lead to more bailouts or fewer, whether the law increases the chances of another crisis or decreases it. 

This question also lobs a number of very nuanced and deeply controversial terms at the respondent – words like “risky” and “abusive” – with almost no context.  What is the optimal level of “risk” for financial institutions, who should assess “riskiness” and how risk can be adequately hedged are questions at the core of ongoing debates over the cause of the 2009 financial crisis and future policy considerations. Labeling a set of practices as “risky” is conclusory and deliberately ignores any existing controversy.

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The landmark Supreme Court case District of Columbia v. Heller established that the right to keep and bear arms under the Second Amendment is an individual right. McDonald v. City of Chicago, which applied the right against state laws, clarified that states can’t “single out” the Second Amendment and treat it with less respect than any other fundamental right.

Heller and McDonald are based on the premise that if states are allowed to decide the scope of our constitutional rights, citizens will receive inferior rights in certain states. Maryland and the U.S. Court of Appeals for the Fourth Circuit are encouraging this system of inferior rights by ignoring the key principle of these cases and allowing state legislatures to define how the Second Amendment should function.

Over a decade ago, James Hamilton accepted a laptop purchased on a stolen credit card and was subsequently convicted of three felonies in Virginia. He completed probation and paid restitution. In 2013, the governor of Virginia restored his Second Amendment rights. Since then, Hamilton has been an exemplary law-abiding citizen; he became an armed security officer with the Virginia Department of Criminal Justice Services and is now a protective security officer with the Department of Homeland Security. A family man and junior wrestling coach, Hamilton is far from a danger to society.

Maryland, however, treats Hamilton as a dangerous felon. When he applied for a handgun permit, he was denied due to his past conviction. A Maryland statute bars felons from owning firearms, with no exception for someone whose rights had been restored. Worst of all, when Hamilton brought his case to federal district court, it was dismissed for failure to state a claim. He did not even argue that the statute was unconstitutional; he argued that the statute, as applied to him, wrongly infringed on his constitutional rights. Yet the Fourth Circuit affirmed the district court, so Hamilton is now petitioning to the Supreme Court for his final chance to reclaim his Second Amendment rights in Maryland.

Cato is supporting his request with an amicus brief. We argue that the Second Amendment has not been adequately protected in lower courts—especially the Fourth Circuit—and that judicial deference has granted states an unacceptable amount of power over civil liberties. With lower courts split on the issue, the Supreme Court has a duty to clarify exactly how states must apply Heller and McDonald. Although Heller established a presumption that state restrictions on felon firearm ownership are valid, this presumption is rebuttable and not immune from as-applied challenges. A decade-old, non-violent felony should not act as a scarlet letter, preventing a person from challenging a statute in court.

When it considers the petition in Hamilton v. Pallozzi this fall, the Supreme Court should take this case and reaffirm a strong commitment to safeguarding our Second Amendment rights against state infringement.