Category Archives: Federalism

Will The Courts Strike Down ObamaCare ? Don’t Count On It

Over at The American Spectator, conservative lawyer Stacy Cline points out that the legal challenges to ObamaCare have the odds, and the case law, against them:

Last night’s passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has protected and even facilitated the modern regulatory state at the expense of our founding principles. The optimism of state attorneys general and others who hope to challenge the constitutionality of this legislation is admirable, but such challenges are not likely to be successful.

But what, you might ask, about what seems like it might be the most vulnerable part of the health care bill, the individual mandates ?

Well, as Cline points out, that may actually be the weakest ground of all:

Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Moreover, as Cline goes on to point out, the Court may not even need to reach the Commerce Clause issue. The Solicitor General, who will be arguing the case in favor of upholding the law, will clearly argue that the mandate and it’s penalty provision are, in reality, a tax, which would be governed under the General Welfare Clause. If that’s the case, then the challenge is pretty much doomed:

The last time a penalty was deemed an unconstituional tax by the Supreme Court was 1922, and since then the Court has permitted taxes on gambling, tobacco, alcohol and a number of other disfavored activities. Should the Commerce Clause prove to be an indefensible basis of authority, the General Welfare Clause would likely be another source of authority. The current Supreme Court, which time and again demonstrates its willingness to uphold the modern regulatory state to legal challenge, is unlikely to delve into a nearly century old line of cases limiting Congress’s ability to impose penalties as taxes.

If they’re not going to over-rule a clearly wrong 68 year old case, they sure aren’t going to overrule one that’s more than a century old.

Over at The Volokh Conspiracy, Orin Kerr gives odds on how likely a SCOTUS ruling against ObamaCare actually is:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction.

I agree with Kerr.

That doesn’t mean that the law shouldn’t be challenged in Court. It should. These arguments need to be made and, even if the challenges are ultimately unsuccessful, they will bring to the forefront issues about the size and scope of government, and the extent to which the limitations of the Constitution have been exceeded that maybe, just maybe, the American people will wake up.

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Lawsuits Await As ObamaCare Passes

Shortly, ObamaCare will be the law of the land, then the next round in the battle begins:

WASHINGTON — The battle over health care is poised to move swiftly from Congress back to the country as Democrats, Republicans and a battery of interest groups race to define the legislation and dig in for long-term political and legal fights.

President Obama plans to open a new campaign this week to persuade skeptical Americans that the bill holds immediate benefits for them and addresses the nation’s shaky fiscal condition. Republicans said they would seek to repeal the measure, challenge its constitutionality and coordinate efforts in statehouses to block its implementation.

The politics of health care are fragile — and far from certain — in the eight-month midterm campaign that will determine which party will control Congress next year. But both sides steeled for a fight to extend well beyond November, involving state legislative battles, court challenges and, ultimately, the next presidential race.

Even before the final vote, Republicans began relentlessly assailing lawmakers who supported the legislation, suggesting Democrats are spendthrift and proponents of big government. Democrats said they would seek to capitalize on the momentum from their success and strive to move beyond the political arguments in hopes of demystifying the complicated legislation.

“We ought to focus on not the political stakes, but the stakes for the country,” David Plouffe, an adviser to Mr. Obama, said on ABC’s “This Week.” “We’re going to go out there and not just talk about what we’re for, but what the Republicans are voting against.”

The next chapter in the health care fight will play out not only in the midterm elections, but also in the courts.

Already three state Attorneys General have announced their intention to file suit as soon as the bill becomes a law.

Virginia:

RICHMOND, Va. (AP) – Less than eight hours after Congress passed sweeping healthcare reforms, Virginia’s Attorney General became the first to announce a legal challenge against it.

Republican Ken Cuccinelli said early Monday that he will file a court challenge against what he and other conservatives decry as an unconstitutional overreach of federal authority.

Cuccinelli said he would file the lawsuit as soon as President Barack Obama signs the bill passed Sunday night into law.

South Carolina:

COLUMBIA, S.C. (AP) — South Carolina Attorney General Henry McMaster is again promising a legal challenge of the health care reform measure passed by the U.S. House.

McMaster issued a statement late Sunday calling the health care legislation “clearly unconstitutional.”

(…)

He says he took part in a conference call Sunday night and expects attorneys general in nine other states to join the challenge.”

And, Florida:

ORLANDO, FL — Moments after Congress voted to approve President Obama’s health care legislation, Florida’s Attorney General announced he will file a lawsuit to declare the bill unconstitutional.

Bill McCollum will join Attorneys General from South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, North Dakota and South Dakota to file a lawsuit against the federal government.

“The health care reform legislation passed by the U. S. House of Representatives this evening clearly violates the U.S. Constitution and infringes on each state’s sovereignty,” McCollum said in a statement distributed late Sunday night.

“If the President signs this bill into law, we will file a lawsuit to protect the rights and the interests of American citizens.”

More to come, I’m sure.

ObamaCare, The Constitution, And The Next Round In The Health Care Wars

The Constitutionality of ObamaCare is apparently a subject that neither Nancy Pelosi, nor any other Member of Congress has given any consideration to. In today’s Washington Post, however, Law Professor Randy Barnett takes a look at the probable Constitutional challenges to the health care bill:

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power “to regulate commerce . . . among the several states.” Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That’s why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of “economic” activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

As I’ve written before, this may be the one area of the health care bill that it most vulnerable to a Constitutional challenge. Neither the Commerce Clause, nor any other provision of Article I, Section 8 of the Constitution would seem to be capable of being read in a reasonable manner so as to grant to Congress the power to force every American man, woman, and child to purchase a produce whether they wanted to or not.

Will the Court’s see it the same way ? That remains to be seen, but there have been signs in recent years that the Supreme Court wants to step back from the overly broad interpretation of the Commerce Clause that we’ve become familiar with:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

So, this is as not nearly as much of a long-shot argument as it might have been twenty or thirty years ago.

Barnett concludes:

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

But what if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? What if control of one or both houses of Congress flips parties while lawsuits are pending? Then there might just be five votes against regulating inactivity by compelling citizens to enter into a contract with a private company. This legislation won’t go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.

If this sounds far-fetched, consider another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.

You might have heard of it: Bush v. Gore.

In other worth, even if ObamaCare passes today, the political firestorm isn’t over, and the legal firestorm is just getting started.

Is America Ungovernable?

Arnold Kling relays the case that many of you who follow the lefty blogs have probably seen:

It’s the latest meme. The U.S. is ungovernable, because of
a) Senate procedures
b) Republican obstructionism
c) polarization
d) special interests
etc.

I’ve seen it from Marc Ambinder, Steven Pearlstein, and others. I’m too lazy to copy links, but my guess is that you have seen it, too.

Well, there are two different questions here that liberals conflate inappropriately:

1) America is ungovernable.
2) Structural government issues prevent the government from getting anything done.

Yes, all the points above explain why #2 is true. But even if all that were “fixed”, #1 would be true, for the very reason Hayek states:

To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.
-Friedrich August von Hayek

To put it simply, it is impossible for a bunch of lawyers and bureaucrats in Washington DC to adequately govern — aka rule — the activities of 300 million Americans. The system — “system” meaning free actions of individuals, not meaning directed and ruled action — is so complex that the best any government can hope to do is to set very general rules making force or fraud illegal*, and set up a fair and just court system to arbitrate. Washington simply cannot integrate the information needed to make decisions at that level effectively.

To be fair, Arnold Kling reaches the same point, but he expands more fully on the idea of decentralization and the idea of federalism or competitive government as an answer. I suspect he does so because he believes competitive government will result in libertarian government — as those who earn refuse to “join” the governments of those who rely on handouts, and thus the non-libertarian governments cannot sustain their goals. This is partly true for territory-based governments (becoming more true as the territory shrinks), and undoubtedly true for non-territory-based governments.

But I find that argument** to have one major weakness. The idea of federalism and local control is largely predicated on the idea that the people in Washington aren’t very good at making decisions for me, and that by moving those decisions closer to me it’s a lot more likely that the decisions my government makes for me are effective ones. But should government make my decisions at all?

Personally, regardless of whether they make good or bad choices, I do not outsource my decision-making to the government. Even if they will make good choices, I do not want them choosing for me. This is a moral statement, and it is just as true of the government of Washington DC as of Sacramento as of Laguna Niguel, CA. It is true that I have more control over the government of Laguna Niguel than of DC, but fundamentally that doesn’t change the fact that my one vote is not determining my decision — it is weighed against the votes of others who do not have the right to decide for me.

If the US is ungovernable, so is the state of California, and so is the city of Laguna Niguel. No matter how small of a government you draw, it cannot have all the information it needs to make decisions for me. Fundamentally, decisions are the marriage of facts and values, and although any government may have access to the facts, it does not have access to my values. Therefore they do not have the information necessary to make decisions for me.

Liberals are upset that the government is structurally biased towards inaction. But action doesn’t equal governance. For something to be governable, the governing authority must have access to both the facts and the values of those it governs. Unfortunately since the latter is never possible, it substitutes its own values (dictatorship) or the average/majority values (democracy). Either is insufficient, and thus America is ungovernable.
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Is An Individual Health Insurance Mandate Constitutional ?

Over at Findlaw, Cornell University Law Professor Michael Dorf criticizes the libertarian argument that a government requirement that every citizen purchase health insurance is unconstitutional:

A federal statute that was already in effect in 1994 provides that “all citizens shall have . . . an obligation to serve as jurors when summoned for that purpose.” To be sure, the mechanisms used to assemble a pool of prospective jurors enable some people to slip through the cracks, but then, that surely would also be true of the individual mandate to obtain health insurance. No law can be perfectly enforced. The important point here is that jury duty, like draft registration, serves as a precedent for the imposition by the federal government of an affirmative duty on citizens.

The difference, of course, between a jury duty mandate or the draft and a law requiring every citizen to purchase health insurance is that both of these obligations of citizens predate the drafting of the Constitution and therefore it’s simply illogical to say that they are barred by the Constitution today, or that the Framer’s contemplated that in allowing the state to compel people to serve on juries, the were opening the door to a whole host of mandates that, if enforced would make freedom a mockery.

Since there doesn’t seem to be much precedent in Federal law, though, Dorf quickly moves on to state law:

Consider that states may impose an affirmative obligation of vaccination on residents. Even in an era when the Supreme Court was otherwise vigorously enforcing libertarian constitutional principles, in 1905, in Jacobson v. Massachusetts, the Court rejected a constitutional challenge to mandatory vaccination.If the government interest in public health is sufficient to overcome libertarian objections to injections into the very bodies of citizens, then surely the public health interest–which is, at bottom, what is at stake in the health insurance reform bills–should suffice to require Americans to buy health insurance or else pay a tax.

Again, it’s clear that Dorf makes the mistake here of finding an exception and turning into a rule. The important thing to note about Jacobson is that it dealt with mandatory vaccination of children for smallpox which was, until defeated by aggressive vaccination, a highly contagious, virulent disease with a high rate of mortality. Which there is a long argument on both sides of the mandatory vaccination issue, the argument in favor is certainly stronger when it involves combating the spread of a disease that poses such a severe risk to public health when balanced against the individual liberty interest in not getting vaccinated. It’s by no means clear, for example, that the result would be the same if the disease in question were something far less threatening to public health, like the seasonal flu.

Unless Dorf can make the argument that lack of health insurance poses an imminent threat to public health on a par with a smallpox epidemic, the Jacobson precedent would seem inapplicable.

The question of the Constitutionality of a health insurance mandate was addressed in a Washington Post Op-Ed by lawyers David Rivkin and Lee Casey and their argument bears repeating:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

That’s the question that Dorf fails to answer — where in Article I Section 8 is Congress authorized to pass this mandate ?

The fact that he doesn’t address it suggests that there isn’t really an answer in the affirmative.

Are Health Insurance Mandates Constitutional ?

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.

Happy Constitution Day

Constitutionalconvention

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

The Nuance Of Medical Marijuana Raids In California

One of Obama’s campaign promises was to stop federal raids on medical marijuana dispensaries which were allowed by state law. Many pundits (myself included) have been lambasting him for not living up to that promise based upon stories like these:

Police raids on medical marijuana dispensaries continue–and continue with federal help, despite an Obama promise to end federal raids on state-legal medical pot dealers.

Of course, Obama gave his Justice Department a loophole, with Attorney General Eric Holder saying back in March that his DEA’s resources would “go after those people who violate both federal and state law….Given the limited resources that we have, our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that’s inconsistent with federal and state law.” This was a way to live up to Obama’s promise that federal raids on people who were not violating their own state’s law regarding medical marijuana would cease.

Unfortunately, so far it’s hard to know how serious to take this promise in relation to these latest L.A. raids, since the federal agents’ role in the raids on two Westside pot dispensaries (and their owners’ private homes) is still unexplained as of this writing. As the San Jose Mercury News reports.

Authorities are not saying why they raided two medical marijuana clinics and arrested the operator at his Los Angeles home. Jeffrey Joseph was free on bail Thursday, one day after local and federal agents searched his home and the dispensaries in Los Angeles and Culver City. Agents seized 450 plants and hundreds of pounds of marijuana products.

Spokespeople for the Drug Enforcement Administration, Los Angeles police, and the U.S. attorney say they don’t know what Joseph was book on. County prosecutors released no details.

Distributing medical pot is legal under California law but it’s a federal crime. However, the U.S. attorney general has said he wouldn’t target distributors unless state and federal laws were broken. County prosecutors say the task force was acting on a state warrant.

There’s a little history here. Medical Marijuana dispensaries have become much more common in Los Angeles over the last few years due to several loopholes and exemptions that made it possible for them to open quickly. The city council has been trying recently to cut down on these loopholes in order to reduce the number of operating dispensaries, but their own legal exemptions are making it very hard to do this quickly.

So how to close these shops without having to go through arduous examinations of dispensaries’ “hardship exemption” applications? Simple, prove they’ve been doing something else to break the guidelines. On the bright side, they can then call in the big guns at the DEA to lend a hand! It’s win-win for the City Council and the Feds (and a big LOSE for the dispensary owners and their customers, of course).

Sadly, many of the dispensaries are making the job easy on the city. A personal acquaintance of mine is a CPA and runs the books for several of these dispensaries, and this is his take on the matter:

The more I interact within this industry the more I realize how illegal most of these operations are. The state attorney general set up specific guidelines, as did the state board of equalization, that would allow an owner to operate freely without fear of raids & prosecution. The key issue in these operations is transparency, which most dispensaries fail to realize. Those operations that have their doors and books open to state and city regulators are never harassed. The clubs that operate outside of the guidelines are always targeted. And from a accounting and tax standpoint, it’s extremely simple to figure out who is operating by the book and who’s not.

I tell all my new clients to always be aware of the fact that the board of equalization is keeping a close eye on the industry to ensure that every sale is taxed and that every penny is sent to the state. The state BOE is in bed with the Feds and have no problem calling for the leg-breakers (the IRS) when they feel they’re being ripped off; which in most cases they are.

These raids are a violent and disruptive elucidation of one critical aspect of business in our government-dominated world — your business exists at the pleasure of the state. If they want to find a reason to come after you, they will find a reason to come after you, or manufacture one. There are a lot of regulations attached to any business, and even more to the medical marijuana industry. If they’re watching, they’ll catch you breaking one of them:

The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
-Ayn Rand

This is the modern equivalent to catching Al Capone on tax evasion, when there wasn’t enough to bust him on the charges of bootlegging (and everything else he was involved in). Obama’s not technically breaking his promise here, but he’s still offering to bring in the big guns and prosecute pot dispensaries if they violate tax laws. He’s violating the spirit of the promise.

Can The Country Survive?

Over at QandO, Dale Franks suggests that we’re careening towards a fork in the road. If we keep on at our current pace, we will reach that fork. Will we go left or right? Dale suggests both:

I’ve also said before–and every time I do, people like Oliver Willis call me crazy for saying it–we’re preparing this country to split apart. There are two political camps in this country: collectivists, and and indvidualists. (Forget party labels. The parties are, at best, loose approximations of those two camps.) It’s a fairly even split between the two camps. And the fundamental philosophies of those two camps have become irreconcilable, for a number of reasons, but primarily as a result of centralization of power in Washington.

Unfortunately, if the solons in Washington declare we must do X, there’s no way to escape the consequences of that decision. And so, every political decision is now fraught with national, rather than local consequences. As a result, the incompatibility between collectivists and individualists is reaching a boiling point. The centralization of power in Washington, and the nationalization of practically every domestic issue, has done nothing but poison our politics, and degraded our political discourse.

He goes on to point out that he doesn’t think we’re headed towards a violent civil war, but that we’re putting decisions on irreconcilable first principles in the hands of a central authority that will force one side to submit — and as we see with health care, they intend for the individualists to submit. Given an American cultural and historical opposition to authority, being forced even to do something we might have freely chosen is not something that we appreciate.

Dale focuses somewhat on federalism and the Red State / Blue State divide. I find that a bit odd, as we’re both living in Southern California, a state that might be worse than the Feds if they were given a free hand. I do see some advantages to federalism as a supporter of liberty; competition between state governments may drive ALL of them towards freedom to survive. But I think we’ve moved beyond a Founders-era conception where we thought of ourselves as citizens of a state first and the United States second. I am an American first and foremost, and a resident of California second.

The greater damage from centralization, though, is destroying the bond between a citizen and his government. The farther away a decision is made and the more competing voices one must overcome to affect policy, the more he feels that his government is completely out of his control. He doesn’t believe the government represents him, and he loses faith in that government. This is where the individualists are today. This is where I am today.

In California, Dale and I each have a vote. The Congressman of my district, John Campbell (R, CA-48) represents a population of roughly 640,000 people*. My vote is one for or against his party, and he is then a vote among 434 other Congressmen. The Senators of my state, Boxer and Feinstein, represent a state of 30M+ people. They are then two votes amongst 98 other Senators. The President is elected by the states, meaning that again my vote for President is one of 30M+, and this is for a state which controls over 10% of the nation’s electoral college votes, which is probably the largest voice I have.

When decisions are made in Washington, my voice as expressed by a vote is merely noise to those in power. I have therefore lost my belief that government has the ability to represent me. I am an American, but this is not MY government**.

Proponents of small government watched as Republicans spent us into record deficits when given the reins of power. We are now watching as Democrats pour gasoline on the spending fire. We individualists have nowhere to turn. We are not being represented and we are being forced into acquiescence with whatever Washington declares.

We have no control, we have no voice, and we are being forced into actions that we fundamentally — down to the core — believe are unfair, wrong, and illegitimate. We’re on simmer. We’ve boiled up a bit with the Tea Parties and now with these town hall meetings. But the government is continuing to turn up the heat, and it’s only a matter of time before we boil over.
» Read more

Where’s The Authority ?

Walter Williams asks a question that, unfortunately, nobody in power bothers to ask anymore:

A president has no power to raise or lower taxes. He can propose tax measures or veto them, but since Congress can ignore presidential proposals and override a presidential veto, it has the ultimate taxing power.

The same principle applies to spending. A president cannot spend a dime that Congress does not first appropriate. As such, presidents cannot be held responsible for budget deficits or surpluses. That means that credit for a budget surplus or blame for budget deficits rests on the congressional majority at the time.

Thinking about today’s massive deficits, we might ask: Where in the U.S. Constitution is Congress given the authority to do anything about the economy?

Or, more specifically, where is the Federal Government given the authority to bailout private lending institutions, bailout failing auto companies, and take over the health care industries ?

I’ve searched high and low in Article I, Section 8 and I sure as heck can’t find it.

Of course, I’m probably not using the modern translation.

Common Ground for the Left and the Right on the Bill of Rights

Charles Lynch Sentenced to 1 Year and 1 Day in Prison

Read the news story here and reason‘s coverage here. The video below is Lynch’s response:

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

» Read more

Let Us Fail

California’s in a world of hurt, exacerbated by the fact that we didn’t offer to give the state a whole bunch more money during our ballot propositions yesterday. There are a lot of reasons for our pain, but it really comes down to a state that never quite understood TANSTAAFL. They’ve been sold the lie that government can do everything they desire, and all of it “with NO MONEY DOWN!!!” Now the bill is due, and there’s going to be some trouble.

But the question is where we go from here. And I can tell you that there is going to be a cry to go to Washington DC, because the government of California is “too big to fail”. I’m not going to be one of the voices calling for this, but as Megan McArdle points out, there are quite a few who will:

There is a surprisingly sizeable blogger contingent arguing that we have to bail them out because however regrettable the events that lead here, we now have no choice. But actually, we do have a choice: we could let them go bankrupt. And we probably should.

If Uncle Sugar bails out California, California will not fix its problems. Perhaps you want Obama to make it fix the problems, using the same competence, power, and can-do spirit with which he has repaired all the holes in the banking and auto manufacturing sectors. But Obama is not in a good position to do this. California Democrats are a huge part of his governing coalition. All Obama can do is shovel money into the bottomless pit of California’s political system.

If California is bailed out by Washington, it will simply be another way to prop up a system that is fundamentally broken. California has spent decades building up the unsustainable and crushing tax & spending burden we now have. Income taxes are high (9.55% for most people above $40K), sales taxes are high, fees and regulations are high. About the only thing we have that isn’t high is property tax, and Sacramento keeps trying to change that.

Fundamentally, we need to be taught a lesson. We need to finally understand that you simply cannot live in perpetual deficit. Arnold Schwarzeneggar recently explained why:

“This is the harsh reality of the crisis we face. Sacramento is not Washington [DC]… We cannot print money.”

Maybe, just maybe, if we fail it will teach us a lesson. It will teach us that money doesn’t grow on trees, and that there is an economic limit to your ability to act in constant deficit. It will teach us that the abnormal — not the normal — scenario is one of constantly printing your way out of problems. Maybe, just maybe, it will restore some semblance of welcome economic sanity to California.

But I doubt it. Obama will find a way to paper over the problems, we’ll play kick the can because Sacramento is “too big to fail”, and wait until this becomes a problem so large that only a national collapse of our entire monetary system will teach us a lesson.

I need to start taking my piles of spare change to CoinStar — paper money will heat my house a lot better than coinage.

No Secession, No Legitimacy!

Many Republicans, having discovered that Bush’s policies are tyrannical, are making noises about wanting out of the fascist state that they were cheering on a few months ago. While we may wonder why it took the trivial matter of having people who have the letter D appended to their names on news reports executing Bush’s policies to open their eyes, we must welcome the fact that they are dimly becoming aware of how thoroughly their leaders had betrayed their country and are looking for ways to undo the damage these leaders wrought.

Some Republicans have even endorsed secession! This is keeping with American tradition that started the first time the idealogical ancestors of the Republican party – the Federalists – lost an election for the Presidency. In that case the merchants of New England threatened secession since Tomas Jefferson’s policies of trade embargoes with foreign markets were crippling them. Since then threats of seccession have been a regular part of the political landscape.

Often the threats of secession are not taken seriously… usually the benefits of leaving the union are not sufficiently great to attract many supporters, and thus the powers-that-be can ignore the movements completely.

Today, though, the Democrats and political leadership are reacting in horror at the reemergence of threat American phenomenon – their dreams of social engineering will go up in smoke if the masses have the option to escape! And many people who should know better are agreeing with them.

People make three arguments against secession:
1)That it is illegal
2)That it is immoral
3)That it is unwise

Let us examine these arguments. » Read more

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Is It Time For A Federalism Amendment ?

Law Professor Randy Barnett thinks so:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

In essence, Barnett argues that states can use the threat of a Constitutional Convention to force Congress to propose an Amendment to the states for ratification. This method worked to some effect in the early part of the 20th Century when Congress finally acted on what became the 17th Amendment after thirty-one states had passed resolutions calling for a Constitutional Convention to consider such an Amendment. Barnett contends that it could work again.

While the specific text of Barnett’s proposed Amendments, which you can find in the article linked above, is interesting and worthy of further discussion, I think there are several problems with his proposal.

First, his suggestion that the states play a game of Constitutional “chicken” with Congress by issuing a call for a Constitutional Convention raises all of the objections to that route that Brad and I noted nearly three years ago. Namely, this:

America was fortunate in 1787 in that we had men like Madison, and Hamilton, and Washington, and Franklin who produced a document that, to this day stands as the blueprint for the best system of government yet devised. I shudder to think what would happen if a Convention were called and populated by the likes of Schumer, Pelosi, Frist, Reid, Specter, and Kennedy.

And that’s precisely what could happen under Barnett’s proposal. What if, instead of caving in to the states on a Federalism Amendment, Congress decides to call their bluff and let a Convention go forward ? Does anyone really think that the end result of such a convention would come even close to what Barnett is suggesting ? I don’t, and I don’t want to take that risk.

The other problem with Barnett’s proposal is pointed out by his Volokh Conspiracy co-blogger Ilya Somin:

I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” In reality, however, many state governments have a great deal to lose because they receive massive quantities of federal subsidies (equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy’s proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have “nothing to lose” from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.

You need to look no further for evidence in support of Somin’s argument than the news coverage of Governors, Mayors, and other local officials who paraded to Washington in the weeks after Obama’s Inauguration to ensure that they got their piece of the stimulus pie. For the most part, these local and state leaders want federal money because, without it, their citizens would have to bear to full cost of all those state programs they’ve implemented — and that would lead to fiscal, and political, disaster for the powers that be.

As Somin notes, Barnett may have a point that a Federalism Amendment may have the salutary effect of giving the tea party movement something to rally around that is more productive than just “hate Obama” and “vote for Republicans,” but as a practical suggestion it seems to be sorely lacking.

Why Ron Paul Is Wrong About Secession

In the wake of Texas Governor Rick Perry’s off-the-cuff comments last week that seemed to suggest he viewed the idea of seceding from the Union favorably, Texas Congressman Ron Paul has waded into the fray.

First, he made these comments in a video posted by his Campaign for Liberty over the weekend:

Then he expanded on those comments in an appearance on CNN’s American Morning:

The biggest surprise to me was the outrage expressed over an individual who thinks along these lines, because I heard people say, well, this is treasonous and this was un-American. But don’t they remember how we came in to our being? We used secession, we seceded from England. So it’s a very good principle. It’s a principle of a free society. It’s a shame we don’t have it anymore. I argue that if you had the principle of secession, our federal government wouldn’t be as intrusive into state affairs and to me that would be very good.

We as a nation have endorsed secession all along. Think of all of the secession of the countries and the republics from the Soviet system. We were delighted. We love it. And yet we get hysterical over this just because people want to debate and defend the principle of secession, that doesn’t mean they’re calling for secession. I think it’s that restraining element of secession that would keep the federal government from doing so much. In our early history, they accepted the principles of secession all along.

In response, Timothy Sandefur does a fairly good job of raking the Congressman — and by extension others who have taken up the secession banner as if it were an actual solution to our problems — over the coals:

Excuse me, Congressman, but the United States did not “secede” from Britain. The nation had a revolution. The difference between secession and revolution is, of course, one which paleoconservatives like Paul insist on ignoring, but it is a crucial one. Secession is the notion that a state may unilaterally leave the American union, consistent with the Constitution of the United States. Obviously since the revolution occurred in 1776, eleven years before the Constitution, it can’t be called “secession.” And perhaps that’s why the word was not used by the founding fathers when they engaged in the revolution or even afterwards.

Secession is and always has been unconstitutional and illegal, for reasons discussed in my paper, How Libertarians Ought To Think About The U.S. Civil War. The people certainly do retain the right of revolution, but revolution, of course, can only be justified on the basis of self-defense. As the Declaration put it, only after a long train of abuses evince a design to reduce the people under absolute despotism may they throw off such government and implement new safeguards for their safety and happiness. That is the principle of a free society: that government exists to protect individual rights and has no value aside from that protection.

I made a similar argument several years ago when I argued that the Southern Rebellion of 1860 was, morally and legally, unjustifiable:

In the most important part of the Declaration of Independence, Thomas Jefferson set forth the criteria for when armed rebellion is justified:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, ? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security

In other words, taking up armed rebellion is not something that should be done for light or trivial reasons. Nor it is something that should be done when there are other, less violent methods for effecting political change.

(…)

Lincoln had said nothing, and certainly in the months prior to his Inauguration, had done nothing, to indicate that such a threat existed. Moreover, if the South had stayed in the Union and sent its Congressmen and Senators to Washington in 1861, they would have represented a voting bloc large enough that they would have been able to block any legislation they didn’t like, especially in the Senate.

I’ve quoted, rather approvingly, much of what Ron Paul has had to say over the past several months about the bailouts and Obama’s economic policies, but on this one he’s just plain wrong.

H/T: Jason Pye

C/P: Below The Beltway

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Gov. Rick Perry’s Tenth Amendment Stance: Principle or Political Pandering?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. – Amendment X – Powers of the States and People. Ratified 12/15/1791.

Texas Governor Rick Perry (R) in his support of HCR 50, a resolution reaffirming Texas’ Tenth Amendment rights has reinvigorated not only the debate over state’s rights but also the ultimate “nuclear” option of a state’s right to secede from the U.S.

On April 9th, Gov. Perry explained his reasoning behind supporting the resolution.

    Gov. Rick Perry’s Tenth Amendment Stance: Principle?

Gov. Perry, speaking at a Tea Party event on April 15th went a step further telling the crowd that the day could come where Texas could decide to secede.

“We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Christy Hoppe, writing for The Dallas Morning News, calls the notion that Texas has a right to secede a “mythology.”

“The fact is, the treaty under which Texas joined the U.S. provides that it could be divided into five separate states. But it is not empowered to leave the union, a question that the Civil War seems to have settled once and for all.”

Left leaning blogs such as Texas Liberal also agree that the question of secession was “settled” with the Civil War and goes even further stating that Gov. Perry’s statements are “treasonous.”

On further inspection, the idea that individuals on the Left would call the question of secession settled should not be surprising at all. When taken to its ultimate conclusion, the philosophy of the Left is “might makes right.” If a majority of people can be convinced they have the right to pick the pockets of a minority of taxpayers, for example, then by all means. In their collectivist world view, “the majority rules;” individual rights must always take a back seat to the will of the majority.

The question of secession was by no means “settled” by the Civil War (or the War Between the States if you prefer), at least not in a sense which recognized the rule of law. Abraham Lincoln made a choice between upholding the U.S. Constitution and preserving the Union. With his suspension of the writ of habeas corpus, and other civil liberties we normally take for granted, Lincoln chose the latter*. The state’s rights issue was “settled” from the barrel of a gun in a period of U.S. history we now call “Reconstruction.”

Beyond this “settled history” argument, it seems to me that if the federal government violates the Tenth Amendment and ignores the sovereignty of the states, it stands to reason that the states can ignore the dictates of the federal government (which is really all Gov. Perry is trying to do). The Tenth Amendment was a guarantee to those who were concerned about states losing sovereignty to a stronger federal government. After all, it wasn’t that long ago that they had secured their independence form Great Britain, why would they want to surrender sovereignty to a new authority?

Over time, the Tenth Amendment was ignored by the courts and the congress. The aftermath of the Civil War practically changed the term “The United States” from an “are” to an “is.” And with the passage of the Seventeenth Amendment in 1913, the states lost the ability to be represented at the federal level. For all practical purposes, the “United States of America” could be more accurately referred to as “The United State of America.”

These facts of history do not make the notion of either state’s rights or secession “mythology” by any means. The Declaration of Independence makes the case for “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…” Thomas Paine’s “Common Sense” makes a similar case as does John Locke in his “Two Treatises of Government.” There is no shortage of political theory which supports Gov. Perry’s claim that states (and people for that matter) have the right to seek self determination and dissolve or separate themselves from oppressive government.

    Gov. Rick Perry’s Tenth Amendment Stance: Political Pandering?

Gov. Perry’s sudden concern for state’s rights does have me wondering about his motives. As I’ve pointed out above, this erosion of Tenth Amendment rights has been happening since before the text of the amendment’s ink dried. The federal government did not just start undermining state sovereignty when Barack Obama was sworn into office on January 20, 2009.

I can’t help but wonder how concerned Gov. Perry was when his predecessor, George W. Bush, moved from the Texas Governor’s Mansion and into the White House imposing unfunded federal mandates such as No Child Left Behind? On what side of the state’s rights debate did Gov. Perry fall when the Ashcroft/Gonzales Justice Department argued successfully before the Supreme Court that Angel Raich could not use marijuana for her medical conditions pursuant to California law on the theory of interstate commerce**?

Some of Perry’s critics believe that his sudden Tenth Amendment convictions have more to do with political pandering than principle (and they may have a point). Gov. Perry is looking to face Sen. Kay Bailey Hutchison in the 2010 Republican Primary Governor’s race. What better way to win support than to promote state’s rights at a Tea Party event? Who knows, perhaps with all of the state’s rights and small government rhetoric he’s espousing, small government minded Texans will forget about his executive orders forcing 11 year-old girls to receive HPV vaccinations?

While it is great to hear someone of Gov. Perry’s stature stating that there are limits to federal power, it would be a lot easier for me to accept as genuine if it wasn’t his party that was out of power in Washington.

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$1.00

This is the amount a jury awarded the America hating professor, Ward Churchill in his civil rights lawsuit against The University of Colorado. Despite charges of academic misconduct “deliberate and repeated plagiarism, falsification, and fabrication” Churchill and his legal team turned his dismissal from CU into a First Amendment free speech issue.

Maybe I don’t quite understand how tenure is supposed to work, but this idea that someone is entitled to a job regardless of how his or her actions damage the reputation of his or her employer (CU in this case) is asinine. Ward Churchill’s firing is not a First Amendment issue but a freedom of association issue (in this case, CU decided to discontinue its association with the professor).

The First Amendment protects speech from government reprisals. I suppose one could argue that Churchill’s employer was the State of Colorado (a wonderful example for why all higher learning institutions should be privately owned, operated, and funded) and therefore, was a government reprisal.

Local Denver attorneys and talk show hosts Dan Caplis and Craig Silverman point out that Churchill took an oath pursuant to Colorado State law to uphold the U.S. Constitution. From their legal point-of-view, Churchill violated this oath when he encouraged students (on multiple occasions) to commit acts of violence against private and government institutions as well as private citizens. How can Churchill take an oath to a constitution he finds illegal and immoral, violate that oath, and still have legal grounds to remain employed by the State?

Beyond this, university speech codes, politically correct as they are, how is it possible to say that one professor could be legitimately fired for violating the prevailing P.C. orthodoxy while Churchill is entitled to a job despite praising the OKC bombing and the 9/11 terrorist attacks? Caplis, on his radio show, pointed out that if Churchill had said, for example, that female students on the CU campus deserved to be raped; his career would be over (and rightfully so). Few would be claiming his First Amendment rights were being violated by CU if these were his words.

Ward Churchill may not deserve to be prosecuted for his hateful speech but he doesn’t have the “right” to teach at CU either.

To Mr. Churchill I would just like to say the following:

Congratulations on your $1 civil rights victory (which you do not deserve); don’t spend it all in one place…asshole!

Posse Comitatus Alert: Military Deployed in Alabama to Aid with Murder Spree Law Enforcement Activities

As I was just interviewed by the Associated Press pertaining to federal troops being sent to Samson, Alabama immediately following a rampage last week which left 11 people dead, I’d thought I’d collect my thoughts on the issue here.

Preliminary reporting includes these stories: the initial AP piece, USA Today, LewRockwell.com, and CNS News.

The AP is currently reporting the following:

The Army has launched an inquiry into whether federal laws were broken when soldiers were sent to an Alabama town after 11 people died in a shooting spree.

The Army confirmed Wednesday that 22 military police and an officer from Fort Rucker were sent to the nearby town of Samson after slayings last week. The town’s tiny police force and county officers were stretched to the limit after a gunman killed 10 people and himself.

Authorization from the governor or president is typically required for the deployment of federal troops on U.S. soil. It’s not clear who ordered the troops sent to Samson.

An Army spokesman says the military is trying to determine what happened. Among the questions is why the troops were sent and what they did while there.

CNS adds photographic evidence of military members on the scene as well as the following:

The troops were apparently not deployed by the request of Alabama Gov. Bob Riley — or by the request of President Obama, as required by law.

When contacted by CNSNews.com, the governor’s office could not confirm that the governor had requested help from the Army, and Gov. Riley’s spokesman, Todd Stacy, expressed surprise when he was told that troops had been sent to the town.

No request from President Obama, meanwhile, was issued by the White House–or the Defense Department.

Wrongful use of federal troops inside U.S. borders is a violation of several federal laws, including one known as the Posse Comitatus Act of 1878, Title 18, Section 1385 of the U.S. Code.

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both,” the law states.

David Rittgers, legal policy analyst at the Cato Institute, said there are other laws barring use of federal troops outside of federal property, as well.

“Title 18, Section 375 of the U.S. Code is a direct restriction on military personnel, and it basically precludes any member of the army in participating in a ‘search, seizure, arrest or other similar activity, unless participation is otherwise authorized by law,’ “ Rittgers told CNSNews.com.

“The security of a crime scene is something I think that would roll up in the category of a ‘search, seizure or other activity,’” Rittgers added.

In addition, there is the Insurrection Act of 1808, as amended in 2007, (Title 10, Section 331 of the U.S. Code) under which the president can authorize troops “to restore order and enforce the laws of the United States” in an insurrection.

Some quick thoughts on the topic:

  • This does seem (based on evidence presented so far) to be a clear-cut violation of federal law.  There may be some local law enforcement arrangements for pooling local law enforcement resources in time of disaster, but they would not override federal law on the matter.
  • There doesn’t seem to be any major harm done, so long as we don’t allow the bar to be lowered for similar future tragedies.  However, as citizens, it is important that we remain vigilant when things like this do occur.
  • This needs to be investigated to determine where the fault lies.  As I told the AP, if some local commander made a mistake, his wrist probably needs to be slapped, as appropriate.  We do need to find where the system broke down in order to prevent something like this from happening again.
  • This doesn’t seem to be part of any nefarious Obama plot to impose martial law across the land.  Some folks seem to be claiming this is President Obama’s first step in some apocalyptic total-takeover scheme.  For the conspiracy-minded out there, if this is such a plot, the Alabama mass murder seems to be a bad case to begin operations.  It was a quick response to a local event with no advance notice.  Anyway, it seems that Obama has a whole lot on his plate right now.  He’s probably too occupied at the moment to be concentrating on how to use a handful of MPs to overturn the Constitution in the deep south.
  • There are times when U.S. military forces do reasonably need to be involved in local issues.  When I was in the Army, I was involved in an operation to remove unexploded military ordinance found on private property in the D.C. area.  In this case, FEMA, local law enforcement and military personal cooperated and communicated about how to handle the issues involved and we (the military) were very mindful about the line between the military and civilians.
  • That someone didn’t quickly answer the question about who ordered the MPs offbase is concerning.  A quick and honest answer probably would have stopped online speculation which may continue for some time.  It also (probably needlessly) undermines public confidence in the military.  Why not simply say “who dunnit” so folks can move back to more important issues in their lives?

In short, we should probably try to figure out what happened and fix the problem so a) the bar doesn’t get lowered and b)  we can prevent this from happening in the future.  We need to remain vigilant, but not overreactive.  Based on information available so far, it appears that no serious harm was done but we do need to get to the bottom of it — and with no stonewalling, either.

UPDATE: Here’s an updated AP report from the Houston Chronicle:

The chairman of the Libertarian Party of Alabama, Stephen Gordon, said while many are worried about the use of Army troops in civilian police roles, he doubts there was anything nefarious about the soldiers in Samson.

“There is no apparent harm here, but the principle still needs to be upheld,” Gordon said. “The barrier has been lowered for the next time, and we really need to take a look at what happened.”

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