The Gun Argument That’s Not Even Wrong


Why the “Founders’ Intent” doesn’t matter

“What was the Founders’ intent?”

This is a favorite question for people to ask when discussing the Constitution — especially the Second Amendment, where arguments over the meaning of the “militia” clause and over the changing nature of guns over 250 years are de rigeur. The problem with these arguments isn’t that one side or the other is right: the problem with them is that they’re not even wrong. They are debating a completely meaningless question.

The latest context for this is a gun which may or may not have been invented by Joseph Belton in 1777. That year, he sent a letter to the Continental Congress, offering his newly-designed “repeating flintlock” gun to the Army: a gun which could, he said, fire as many as twenty balls in a matter of five seconds. This gun has taken on importance in political disputes because it would be evidence that the Founders were aware of the possibility of automatic weapons, and wrote the Second Amendment fully conscious of that. This particular dispute was shaken up today, when journalist Adam Weinstein claimed that the gun was an elaborate hoax penned by his grandfather, and never existed at all.

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Can We Legislate Political Speech Online?


Policymakers from both sides of the aisle are looking into it. But how would it work?


Last Wednesday I described the tech industry as “curled around a bottle of gin,” and since then, things have only gotten worse. Facebook has since been served with a warrant (as I’ve written for months, its data centers were always destined to be the center of Mueller’s investigation), and the press smells blood in the water.

Now Congress is officially looking at legislation to curb political advertising on the Internet, Axios reports. But as much as lawmakers may want to snap their fingers and transform the graywaters of the web into transparent, well lit town squares, translating FEC regulations from offline media to the complexities of platforms like Facebook, Twitter, and Google is going to require deft policymaking. And given our current administration was arguably put in place by a lack of such regulation, let’s just say it’s going to be quite a lift to get anything done. Here’s why:

  • Current FEC rules governing offline media are narrow by design. They focus only on specific campaign time periods, and specific candidates or registered lobbying organizations. The ads which ran on Facebook (and most certainly other platforms) skirted these rules by focusing on issues (Build the Wall!) and fake news or opinion stories built to go viral.
  • Expensive and Open vs. Cheap and Hidden. Offline media had another important natural constraint: It is expensive, and it is broadcast in nature, easily seen by all. That meant third party players (like the shadowy Russian organizations identified by Facebook earlier this month) would have to spend a lot of money to meaningfully impact the election, and they’d have to do it out in the open, raising questions of origin and intent. On platforms like Facebook, you can have massive impact with minimal dollars, and you can target your ads to very specific audiences with total anonymity. What happened online during the election of 2016 simply has no allegory in offline media, or its regulatory framework.
  • What’s Political Speech Anyway? (The First Amendment). Forcing tech companies to police political speech on their platforms re-opens some of our society’s most contentious policy questions, some of which have been mostly “settled” for decades. As I also wrote last week, the 1996 Communications Decency Act specifically excludes platforms from liability with regard to speech on their systems, political or otherwise. If we wanted to force all political advertising to be disclosed, we’d have to first identify what speech is in fact political, and whether it actually intends to influence an election. Citizens United v. Federal Election Commission, a landmark Supreme Court case, extends First Amendment rights to corporations, who certainly have any number of political opinions they’d like to express. Ask yourself, what’s “political” anyway? What if Fed Ex wants to make the case for open borders, or Walmart wants to lobby against (or for) an increased federal minimum wage? Would these ads be subject to disclosure (they wouldn’t if they were on TV, FWIW)?
  • Privacy and Secrecy. As I pointed out in my rather overlong piece last Friday, the new reality (and economics) of online advertising is posited on insanely precise targeting, and that kind of targeting has created a complex ecosystem of iterative campaigns that demand secrecy (in other words, the opposite of disclosure and transparency). Ever looking for a market opening, advertisers on Facebook or Google routinely run hundreds of tests aimed at tiny segments of audience members, with highly sensitive offers and messaging. If new regulations forced those companies to disclose their campaigns, one could reasonably argue the privacy of the advertisers (and their targets) would be compromised. Put another way, the entire model of our current internet would be upended. There is in fact an economic benefit to opacity, as one long time policy source recently put it to me. The question is, does it outweigh our society’s right to know who is trying to influence us?

I think longtime readers will know how I come down on these questions. Sure, regulating political advertising on the internet is complex, even arduous. But to my mind there’s simply not an excuse for our lawmakers to put our right to know ahead of the clear and present danger our system of democracy faces from the unregulated nature of our current communications infrastructure. Hard work? Sure. But not impossible, and far too important to ignore.

Meanwhile, Russia Leverages the First Amendment To Win the InfoWars

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“Selective constitutionalism”


Part of the Constitution, too!

Last week, we launched a campaign to raise the funds we need to bring an Equal Protection challenge to the winner-take-all system for allocating electoral college votes. Tons were really excited about the idea, and many have stepped up to help support it. That reaction was amazingly cool and I’m really grateful for the support. (It’s not too late — you can support us still!)

But there’s a particular kind of resistance that we should call out, and ask it to justify itself — call it, selective constitutionalism.

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What Can Be Pardoned?


Some unexpected ins and outs of an executive power

The President’s power to pardon people accused or convicted of crimes is in the news like it hasn’t been since Clinton pardoned a number of dubious people on his last day in office, or maybe even since Gerald Ford pardoned Richard Nixon. And it’s in the news for a good reason: Trump and his inner circle are under investigation for a truly stunning array of major crimes, ranging from accepting illegal foreign campaign contributions to actively conspiring with a foreign power to subvert elections, and just a few days ago, Trump made vividly clear that he would happily pardon anyone he saw as furthering his own cause.

What this means is that discussions of pardons aren’t just about legal theory: they’re about the practical ins-and-outs of criminal investigations, political lobbying, and just what a determined prosecutor can do to bring a corrupt politician to justice, when that politician seems to have unlimited power to stop him.

The answer may be, more than you expect — but not in the ways you expect it.

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The Law Is Fiction We Chose to Believe


NewCo Shift Forum

Y-Vonne Hutchinson on what she learned while creating societies from scratch

Y-Vonne Hutchinson at Shift Forum.

A highlight of the NewCo Shift Forum’s program was the Ignite series of talks, short (five minute) presentations from experts across a diverse set of companies and experiences. In this Ignite talk, Y-Vonne Hutchinson, founder of ReadySet, explains her experiences creating a legal framework in a disputed No Mans Land between Burma and Thailand.

Y-vonne Hutchinson: Before starting my company, I was an international human rights lawyer. I’m here to tell you about one of the most seminal moments in my career. It all started off in law school. (Referring to presentation). That’s me. I don’t know if you can tell, but I was pretty miserable.

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