August 2017

August 21, 2017 5:42PM

Taking Aim at Maryland’s Ban of Arms Commonly Used for Self‐​Defense

By Ilya Shapiro, David B. Kopel, and Matthew Larosiere

A Maryland statute prohibits ownership of “assault weapons,” the statutory definition of which includes the most popular semi‐​automatic rifles—one bullet per trigger‐​pull without reloading—in the country, as well as magazines capable of holding more than 10 cartridges (bullets). Stephen Kolbe, a small business owner, among others, sued to overturn the law. The U.S. Court of Appeals for the Fourth Circuit upheld Maryland’s ban.

The Fourth Circuit extrapolated from a shred of the landmark 2008 District of Columbia v. Heller case, suggesting that weapons “most useful in military service—M-16 rifles and the like” could be banned. From that squib, the court decided that the test for whether or not a class of weapons could be banned was whether it was “like an M-16.” That not only contravened the core of Heller—that all weapons in common lawful civilian use are constitutionally protected—but raised a host of other issues.

Accordingly, Kolbe is now asking the Supreme Court to review his case. Cato, joined by the Second Amendment Foundation, Independence Institute, and National Sheriffs’ Association—a law enforcement organization!—has filed a brief, co‐​authored by Georgetown law professor Randy Barnett, supporting that petition. We point out that the Maryland law classifies the common semi‐​automatic firearms used by police officers as “weapons of war,” alienating officers from their communities and undermining policing by consent.

Where for generations Americans needed look no further than the belt of their local deputies for guidance in selecting a defensive firearm, Maryland’s restrictions prohibit those same arms to their citizens. Those weapons selected by law enforcement specifically for their reliability, accuracy, and overall utility as defensive weapons would be unavailable for the lawful purpose of self‐​defense. Maryland considers them weapons of war, best suited for inflicting mass carnage.

At a time and place where tensions between police and policed are a sensitive issue, the law sets up a framework where the people of their state could be fired upon by police with what the state restricts as “weapons of war,” a principle that only serves to drive a wedge between police and citizenry.

Further, arms falling within the scope of Maryland’s ban were not only in common use at the time of the law’s enactment, but have existed since the 16th century. By the time of the Constitution’s ratification, the state of the art in shoulder arms was a 22‐​shot repeater. Thus, it cannot be said that repeating arms were beyond the contemplation of the Second Amendment. Moreover, by the time the Fourteenth Amendment was enacted—through which the right to keep and bear arms is enforceable in the states—repeating arms holding 11 or more cartridges were available and in common use worldwide.

Today, the majority of firearms sold in the United States for self‐​defense are prohibited in Maryland. The Fourth Circuit erred in upholding this denial of Marylanders’ constitutionally protected arms. This law was particularly egregious in its outright banning of common semi‐​automatic arms—and there exist no similar laws in other jurisdictions which are longstanding or traditional.

Maryland’s law is unconstitutional on its face and the Fourth Circuit’s reasoning in upholding it lacks legal or historical foundation. The Supreme Court should take up Kolbe v. Hogan when it returns from its summer recess.

August 21, 2017 12:29PM

After Charlottesville, Some Misguidedly Embrace CVE

Over the past week and in response to the recent clash in Charlottesville, Virginia between neo-Nazi/white supremacist fanatics and those opposed to them, some elements on the American political left are now clamoring for the Trump administration to restart a long-ago discredited Department of Homeland Security (DHS) program known as "Countering Violent Extremism" (CVE). This action alert from CREDO Mobile is representative:

DHS established the Counter Violent Extremism (CVE) program to protect communities from domestic hate groups. It provides funding and resources to help communities develop and sustain local prevention efforts. Life After Hate, a group that focuses on breaking down white supremacy, was the only organization of its kind that DHS had approved for CVE federal funding before Trump took office. Just weeks before the terror attack in Charlotteville, anti-Muslim Trump aide Katharine Gorka, wife of known Nazi sympathizer and Trump adviser Sebastian Gorka, pushed the CVE to eliminate Life After Hate’s grant. Now, no CVE funding supports groups that exclusively confront white supremacy. Trump’s administration is planning to refocus the CVE program on extremism connected to Muslim groups only. That is blatantly discriminatory and completely unacceptable.

Tell DHS and key congressional leaders: Restore federal funding to stop Nazis, white supremacists and other right-wing extremists engaging in domestic terrorism.

Yesterday, a Huffington Post headline blared "It’s Not Just Trump, Federal Law Enforcement Is Not Very Focused On Far-Right Extremism." As I noted last week, a 2014 survey conducted by Duke University in concert with the Police Executive Research Forum (PERF) found exactly the opposite. Indeed, as I noted in that same piece, multiple governmental entities over the course of the last decade have continued to highlight the threat posed by neo-Nazi/white supremacist groups.

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August 21, 2017 9:01AM

Statuary and Stasis: The Case of Roger Taney

The Frederick News‐​Post has run my opinion piece on Maryland Gov. Larry Hogan’s decision to support relocation of the statue of Chief Justice Roger Taney from its previous conspicuous spot in front of the State House in Annapolis. Excerpt:

…Taney did many things in an illustrious legal career but is remembered for only one: the disastrous Dred Scott decision, which served to entrench slavery….

divChange in the display of public memorials is natural and inevitable. Cemeteries may aspire to present an unaltered face over centuries. Both cemeteries and battlefield sites appropriately look backward rather than forward. But much‐​used public places are meant for the living and are ordinarily under tougher scarcity constraints.….

No one has erased him from the history books—the Dred Scott case itself makes sure of that.…

Some conservatives now cry that we are on a slippery slope. What next—take Jefferson off the nickel, rename the city and state of Washington?
divBut each and every modern society chooses to live partway down the slippery slope of “not remembering history.” (Unless you believe that Warsaw, Prague and Budapest should have left their statues of Lenin in place.) Like Europe, America can take advantage of big, comfortable stopping points short of tearing down and renaming everyone and everything. For example, few if any memorials to Jefferson honor him for being a slaveholder. On the other hand, most statues of Confederate leaders do honor their service to that specific cause. Writes libertarian law professor Ilya Somin: “government should not honor people whose principal claim to fame was fighting a war in defense of the evil institution of slavery.”

On one big point, conservatives are very right: Mob actions and vandalism seldom end well.…

Whole thing here, plus some thoughts from Andrew Stuttaford. From Atlas Obscura, displaced statues as a subject of historic preservation. Related, from @david_tanenhaus on Twitter: “My favorite Civil War era monuments are the 13th, 14th, and 15th Amendments.” [cross‐​posted and adapted from Overlawyered]

August 21, 2017 8:02AM

Is the Encyclopedia of Libertarianism like Wikipedia?

I see that my colleagues are referring to the new online Encyclopedia of Libertarianism as “a Wikipedia for libertarianism.” I suppose that’s sort of true, in that it’s an online encyclopedia. But it’s not exactly Hayekian, as Jimmy Wales describes Wikipedia. That is, it didn’t emerge spontaneously from the actions of hundreds of thousands of contributors. Instead, editors Ronald Hamowy, Jason Kuznicki, and Aaron Steelman drew up a list of topics and sought the best scholars to write on each one — people like Alan Charles Kors, Bryan Caplan, Deirdre McCloskey, George H. Smith, Israel Kirzner, James Buchanan, Joan Kennedy Taylor, Jeremy Shearmur, Leda Cosmides and John Tooby, Norman Barry, Richard Epstein, Randy Barnett, and Vernon L. Smith, along with many Cato Institute experts. In that regard it’s more like the Encyclopedia Britannica of libertarianism, a guide to important topics by top scholars in the relevant field.

The Britannica over the years has published articles by Albert Einstein, Sigmund Freud, Marie Curie, Leon Trotsky, Harry Houdini, George Bernard Shaw, Bertrand Russell, Milton Friedman, Simon Baron Cohen, and Desmond Tutu. They may have slipped a bit when they published articles by Jimmy Carter, Bill Clinton, and Lee Iacocca. And particularly when they chose to me to write their entry on libertarianism.

August 20, 2017 11:13AM

Crony Capitalism and Stifled Speech

Was it a typo or a Freudian slip? The Washington Post reports:

As president‐​elect, for instance, Trump took Boeing to task for cost overruns when he tweeted that the Air Force One program’s $4 billion expenditures were “out of control” and suggested the contract be canceled.…

Trump was more complementary on Feb. 17, when he made appearance at a Boeing factory in South Carolina and concluded his remarks by saying, “May God bless you, may God bless the United States of America, and may God bless Boeing.”

The reporters meant “complimentary.” But indeed the point of the article is just how “complementary” big government and its big contractors are. Headlined “Why America’s biggest government contractors balked at criticizing Trump,” the article explores how CEOs started jumping off President Trump’s advisory councils after his disappointing remarks about white supremacists marching in Charlottesville — but not “the four government contractors on the president’s advisory councils — Lockheed Martin, Boeing, Harris Corp. and United Technologies.” After all, 

In many ways, contractors such as Boeing and Lockheed Martin are more dependent on government decision‐​making than other companies that took part in the councils.

Indeed, if a large part of your business comes from government contracts, you’d better be very careful about criticizing the president of the United States. Especially a president who has little sense of the proper limits of presidential authority:

Those negotiations [over a new fighter plane] were marked by unusually close interactions between Trump and the business executives involved. Bloomberg later reported that Trump allowed Boeing chief executive Dennis A. Muilenburg to listen in on a call with a key government manager for the F-35 program as Trump sought information on the two planes.

President Trump’s tweets, legal problems, chaotic White House management, and other high‐​profile troubles may have diverted attention from a problem that many of us pointed out before he was elected: his “economic nationalism” that seems to mean in practice protectionism, crony capitalism, and a promise that he’ll personally run the U.S. economy.

Government contractors understand this. Even before he was elected, Trump intervened to “persuade” Carrier to keep a plant open in Indiana. How? Was it the state tax credits? Or something less public? The CEO of Carrier’s parent company United Technologies, Greg Hayes — who was later on the president’s manufacturing council — acknowledged that the deal to keep the plant open probably wasn’t really economic. But:

I was born at night, but it wasn’t last night. I also know that about 10 percent of our revenue comes from the U.S. government.

When companies get in bed with government, that’s the bargain they make. And as we’ve just seen, that bargain not only leads to economic decisions that make us all poorer, it stifles the free speech of those dependent on government decisions. And that’s a problem when government is the biggest landlord, employer, arts patron, and purchaser of goods and services in society.

August 18, 2017 5:05PM

Does School Choice Segregate?

When those in power make blatantly false claims that could lead to less freedom for the least advantaged members of society, it is imperative that they are corrected. The President of the American Federation of Teachers, Randi Weingarten, gave a speech last month where she stated that school “vouchers increase racial and economic segregation.”

What Does the Evidence Say?

As I pointed out last month in a Cato Policy Forum on School Choice and Democracy, out of the eight rigorous empirical studies existing on the subject, seven of them show that school voucher programs increase racial integration within the United States. As shown in table 1 below, none of these studies indicate that vouchers lead to racial segregation. Why is this the case?

When school choice programs give disadvantaged children the opportunity to exit their already-segregated neighborhood schools, their transitions unsurprisingly result in a more racially and socioeconomically integrated society.

Table 1: Impacts of Voucher Programs on Racial Integration

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Note: A box highlighted in green indicates that the study found a statistically significant improvement in racial integration. A box highlighted in yellow indicates that the study did not find any significant differences in racial integration across sectors. Read the rest of this post »
August 18, 2017 11:35AM

Terrorism in Spain—What Is the Hazard?

Yesterday, two men drove a van into a crowd in Barcelona, Spain and killed more than a dozen people and injured many more in what Spanish authorities are claiming is a terror attack.  Spanish authorities may have also prevented another attack later in that day and believe these are linked to a recent explosion.  Not all of the facts are public yet and we will learn more in the coming days, but Spain’s experience with terrorism can at least put what happened into perspective.

According to data from the Global Terrorism Database at the University of Maryland and the RAND Corporation, terrorists murdered 1,209 people in Spain from 1975 through the end of 2016 (Figure 1).  The spike in deaths in 2004 was the result of a major al Qaeda attack on the Madrid subway system that murdered 192 people.  Only the United Kingdom has suffered more from terrorism during that time with 2,359 total murders.  There were also 4,738 injuries in terror attack in Spain during this 42-year time span.

Figure 1

Murders in Spanish Terrorist Attacks by Year, 1975-2016

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Sources: Global Terrorist Database and RAND Corporation.

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