Be Not So Sensitive

Bump stocks and MAGA hats.

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We got some exquisite First and Second Amendment content for you today. David and Sarah discuss a Fifth Circuit decision to strike down the Trump administration ban on bump stocks. They then discuss whether a teacher has a right to wear a MAGA cap even if it engenders emotional reactions.

Show Notes:

Fifth Circuit Majority Opinion on Bump Stock bans

Gorsuch’s dissent

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  1. Avatar photo
    PaulH

    I think David and Sarah may be going a bit light on those who claim take offensive by assuming that such people are acting in good faith or worrying that bad incentives WILL be created. It seems pretty clear that the incentives are in place and that people are acting in bad faith.

    The Ilya Shapiro debacle at Georgetown is a perfect example. Shapiro tweeted something that, if one stretched, could be interpreted as racist. Activists immediately accused him of racism. He apologized and clarified what his meaning was. If the activists were actually troubled by his tweet then they should have been relieved by his clarification and his apology. But they weren’t actually troubled – they just saw an opportunity to get him fired – and they succeeded.

    That was not an isolated incident. Many on the left are continually looking for opportunities to paint people as racists and make expressing opposing viewpoints unacceptable. Not because they are actually offended or concerned for their safety (those are pretexts) but because it is an effective political weapon to silence opponents. In this case, it was a MAGA hat. But Biden famously claimed that someone as milquetoast as Mitt Romney wanted to put blacks back in chains. Would that have made wearing an “Elect Romney” cap unacceptable? [to be clear, the right is getting into the faux outrage game also].

    The swastika cap hypothetical isn’t particularly illuminating. The Supreme Court has made it clear that Nazis have the same free speech rights as everyone else – so the person could bring that cap to the training session. However, one could be excused for not extending the same generosity of spirit to such a person that one should to a person wearing a MAGA or BLM cap. Having some sense of proportion does not prohibit one from calling out those who are engaging in cancel culture.

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  2. Mary V Hitchings

    Prior to January 6, I would've agreed with Sarah and David on their commentary about the MAGA hat and considered the reactions of those troubled by it to be unreasonable. Considering that violence has so often been encouraged by some MAGA followers and Trump himself, it seems unfair to compare a MAGA hat to a "Yes, We Can" poster which represented a campaign that never advocated for violence in any form.

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    This comment has been deleted

  4. Michelleheyne

    This may seem like a side trip, but it's directly applicable to the offense conversation. I can't recommend enough a review of John Wallen's theory of the Interpersonal Gap: https://en.wikipedia.org/wiki/The_Interpersonal_Gap

    It's great stuff! Very helpful personally, and in working with groups of people, both large and small.

    The idea of differentiating between feelings (variations on mad/sad/glad/mad) and judgments or thoughts (including the attribution of motive), as well as the ability to describe behavior rather than attribute intention, are central to good communications training over the past 60+ years. Feelings are facts (and they're important), but they are a fact about the person having the feeling. Offense is generally the result of thoughts or judgments about what our feelings mean or what we assume the other person intended. We each have a responsibility to manage our own feelings, and identifying them as such in the first place is key to the ability to deal with them productively. And as we all know, different people can have very different feelings, thoughts, and judgments about exactly the same event. When people assume their feelings and judgments should determine how other people behave, however, it eventually becomes virtually impossible to have more than one person occupy the same space. This is not just a left/right issue - the ability to accurately identify feelings, give them the respect they deserve, and separate them from judgements and behavior, but not allow any of it to act as a cudgel, has never been a widely-developed skill, but it is fast deteriorating at even elementary levels among folks of all political persuasions.

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  5. Avatar photo
    Ben Connelly

    Don’t take offense easily and try not to give offense/be offensive. Great advice.

    “It’s an act of kindness to not be so sensitive.”

    I would agree. There’s a big difference between having a breakdown when you see a swastika and keeping your cool but still directly and forthrightly explaining that Nazism is evil.

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  6. Alvin

    Good episode. I thought the MAGA hat discussion was interesting but unsatisfying. The question I had as I was listening was "What if it had been a swastika on the hat?" and Sarah raised that question. And then the discussion went squishy.

    I think David said "well there are about 50 million more bodies" associated with swastikas than MAGA hats. OK, fine. But where is the line where it is OK to suppress speech? Is it at 10 bodies? A thousand bodies? A million bodies? I am genuinely curious where that line is, as a matter of law/precedent.

    On the "good manners" side of things, I entirely agree with the philosophical approach of not taking offense easily. But I want to push back on David's comment of "do they know ALL the things associated with Trump did or said" by asking "but did they know enough"? You don't have to know ALL the things that Trump has done in order to know understand the character of the person and the message; if you choose to associate yourself with him and his movement anyway, then you can also suffer the social consequences.

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  7. Dustinragan

    Everybody here in the comments section is talking about guns and stuff, but the real question is: will David use his remaining time as host to make Sarah talk about the current legal issues involving Dungeons and Dragons?

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    1. Avatar photo
      Dave T

      What legal issues? Inquiring minds want to know! Is Vecna finally being sued by the Adventurer's Guild for artifact-related fraud over the "Head of Vecna" scandal?

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      1. Dustinragan

        Once upon a time, there was a company called TSR, known for creating D&D and for being very litigious. They were not particularly well run and D&D fell from favor, and they were acquired by Wizards of the Coast. Twenty years ago, before the release of D&D 3e, WoTC released what is known as the "Open Game License", which was modeled on open licensing systems in the world of software. While there is debate about how much the license gives you due to the copyright of mechanics, the license served an armistice between the makers of D&D, and the makers of D&D-like games. And peace reigned.

        However, time flows like a river and history repeats. Now, at the end of the age of the 5th edition, WotC, now the vassal of Hasbro, seeks to undo the OGL and the fragile peace it created using legal arguments that are aggressive, to say the least.

        Directly or indirectly, a huge amount of the last 20 years of tabletop RPG publications depend on the OGL. It's possible that Hasbro could end up trying to declare all of them no longer appropriately licensed. Of course, there's also a good chance that Hasbro has pulled a Putin and going to discover that antagonizing the entire world is not a good plan.

        It's riveting nerd drama.

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        1. Avatar photo
          Dave T

          Interesting; I had not heard. They're obviously still mad about Paizo going off and becoming a bigly successful (though much smaller) RPG publisher with pirate D&D3.5 -- er, sorry, PATHFINDER, which is of course a TOTALLY different thing. But hey, news flash, that's not business that Paizo stole from WotC; that's an entirely different product line that Wizards was NEVER going to create.

          Those dummies just cannot see the forest for the trees -- the masses of third party content are one of the best things that could happen to their product. They have a good thing going, unless they get greedy and blow it all up.

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  8. Aaron H Frank

    Thanks for getting to "bumping" vs. "bump stocks". Kevin Williamson has talked and written about how this is a piece of plastic made for people who cannot or will not learn the technique. Kevin made the same point that David made which is that these are not very accurate which did not matter in the Las Vegas case.

    David's message of showing kindness but also to not be so sensitive are also well taken. Thank you, David.

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  9. Dr4146

    Judge Ho strikes again!

    I do not think the NFA/GCA definition of "machine gun" is ambiguous in relation to bump stocks. It requires multiple pulls of the trigger from both the gun's perspective and the shooter's perspective.

    If you pull up an image of a bump stock attached to a rifle, you will see that it has a pistol grip with an extrusion into the area of the trigger guard. When firing a rifle with a bump stock, the user's trigger finger is supposed to rest on that extrusion and the symmetrical extrusion on the other side of the trigger guard, as depicted in (1). There would be little difference if the bump stock had a bridge connecting both extrusions. The user could fire the rifle without putting their finger in the trigger guard.

    To fire, the user does not pull the trigger, at least not conventionally. They push forward on the firearm. Since the bump stock-pistol grip-trigger bridge component is separate from the firearm, the forward motion of the firearm moves the bump stock-pistol grip-trigger bridge component backwards relative to the firearm, thus pulling the trigger. The recoil forces the firearm backwards, but not the stock, which is fixed against the user's shoulder. This puts the relative location of the bump stock-pistol grip-trigger bridge component to the rifle back at rest, allowing the trigger to reset. The user's continuously applied forward pressure repeats the process.

    During the process of continuously firing with a bump stock, the user's arm must move backwards and forwards for every pull of the trigger. Thus, even from the user's perspective, it is not a single action of the trigger for firing multiple shots.

    However, the 5th Circuit treating it as ambiguous and issuing this ruling is still terrific (for gun rights) given the ATF's other illegal moves in matters the NFA and GCA are ambiguous on. The ATF's pistol brace rule, which is expected to be published in February, is set to classify nearly all firearms with a pistol brace as short-barreled rifles. There is some genuine ambiguity as to whether or not attaching a pistol brace to a weapon which would be a rifle if it had a stock makes it a rifle. Pistol braces are intended to be fired strapped to the user's arm, not the shoulder. But it is possible to attach a pistol brace to a weapon you "designed or redesigned, made or remade, and intended to be fired from the shoulder" by firing the pistol brace from the shoulder. (2) The 5th Circuit's application of Chevron and Lenity would rule against the ATF in this case. Even if SCOTUS somehow does not take Cargill and affirm the 5th Circuit's decision, once the pistol brace rule is issued, the normal gun rights plaintiffs (FPC, 2AF, GOA, etc.) could sue in a district under the 5th Circuit and get a nationwide injunction.

    (While the 5th Circuit did not discuss this, I question the constitutionality of the underlying law; the machine gun ban from the 1986 FOPA and most of the 1934 NFA. What case do I base this speculation on? US v Miller. That's right, the case that gun control activists believe vindicates their "states' rights/militia" interpretation of the 2nd Amendment and, most ironically of all, upheld a prosecution of the NFA. The court upheld the conviction of a 1930s gangster's possession of an untaxed short-barreled shotgun, in part, on the basis that since short-barreled shotguns did not "at [their] time [have] some reasonable relationship to the preservation or efficiency of a well regulated militia," they "cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." (3) In other words, Miller's SBS was not suitable for militia purposes, so it is not protected by the 2nd Amendment. Machine guns, unlike SBSs, are very much suitable for militia purposes, as are many other items regulated and taxed by the NFA, such as short-barreled rifles, suppressors/silencers, and some destructive devices. Miller could have won if he were in possession of a machine gun instead of a SBS.

    While this would make the statute banning machine guns that the Trump Administration interpreted as banning bump stocks illegal, it would not necessarily make a theoretical ban on bump stocks, passed through the legislative process, illegal. Bump stocks are not arms themselves and they are not vital to a functioning weapon the way that ammunition or magazines are - they are accessories to a weapon. In any case, they do not meet the SCOTUS-approved interpretation of "arms" set in Miller or Heller. No military or militia in the world uses bump stocks and they are not "in common use." It is reasonable to speculate that weapon accessories are less protected than the weapons themselves, thus allowing for regulation of not only bump stocks but also red dot sights, weapon lights, shell holders, etc. While I do not expect the courts to rule such, it is probable that a bump stock ban is legal while a machine gun ban is not.)

    (1) https://www.republicworld.com/world-news/us-news/us-appeals-court-blocks-ban-on-rapid-fire-bump-stocks-articleshow.html
    (2) https://www.law.cornell.edu/uscode/text/26/5845
    (3) https://supreme.justia.com/cases/federal/us/307/174/

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    1. MathewA

      Agreed I've made the exact same arguments. While US V Miller was wrongly decided (the 2nd amendment protects other guns, not just those used by the military) it was right that it definitely would protect those used by the military. As the main point of the 2nd amendment was to allow citizens to arm themselves to oppose a potentially tyrannical federal government.

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  10. Nordic_man

    A weak speaker with a competent congress who actually wants to govern is fine. A weak speaker with members that still think that legislating is unimportant is a problem.

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    1. Aaron H Frank

      Speaker McCarthy should begin the process of removing Reps. Gaetz and Boebert. It will not be easy but given the Ds who oppose these two and the Rs who support McCarthy there should be enough bipartisan support.

      This will strengthen McCarthy and serve as a warning to those who do not come to Congress to work.

      Adding a rule that the House will not consider any bill longer than 100 pages and written in 12 point type would also go a long way to restoring The People's opinion of this branch of Congress.

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      1. Nordic_man

        Throw in santos and you have my vote

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