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Last month, I participated in a discussion about gun control on the
Legal Talk Network with Adam Winkler of UCLA. It's 35 minutes, and
here. As usual, Winkler was well-informed, amicable, and eager to
engage in constructive dialogue.
I also participated in a debate on WHYY, Philadelphia, with
Stanford's John Donohue. It's 49 minutes, and available
here. One thing I should have said, but forgot to, was to correct
Prof. Donohue's misapprehension that Charles Christopher Cox (U.S. Rep.
1989–2005; Chairman of the Securities and Exchange Commission 2005-09)
now works for the National Rifle Association. Since 2002, the Executive
Director of the NRA's Institute for Legislative Action has been Chris W.
Cox. The two men are not the same person. Nor should either of them be
confused with the remix DJ
Chris Cox, or
the former Lt. Governor of Maryland
Over at Balkinization, guest blogger Michael Greve offers an
excellent post explaining the Competitive Enterprise Institute's
pending cert. petition in a case challenging the tobacco cartel. In
short, the 1998 Master Settlement Agreement for the lawsuits initiated by
some state Attorneys General against the largest tobacco companies is a
violation of the Compacts Clause. Article I, sect. 10, of the Constitution
list some things that states may never do, and other things that states may
only do with the consent of Congress. The Compact Clause mandates: "No
State shall, without the Consent of Congress...enter into any Agreement or
Compact with another State..."
As Greve explains, the Supreme Court has not done much to enforce the
Compact Clause for the last quarter century; but Greve points out that in
2009, the Roberts Court enforced another provision in section 10 (the
Tonnage Clause) which had last been heard from in 1935. Even the Court's
most lax interpretations of the Compact Clause have not left the clause
without meaning, and Greve persuasively argues that if the Compact Clause
has any legal meaning, it must prohibit the MSA.
The CEI website has a page with links to
various documents in the case, including an
amicus brief in support of the cert. petition, signed by the
impressively diverse and brilliant team of Kathleen Sullivan, Richard
Epstein, and Alan Morrison.
As a practical matter, the MSA is a scheme by which a few tobacco giants,
all of which were accused of decades of substantial misdeeds, including
fraud, were allowed to create a system to cartelize the tobacco market, and
to insulate their market shares against competition from smaller companies
which had committed no wrong-doing. The VC's Todd Zywicki participated in an
antitrust professor amicus brief in favor of the cert. petition. That
brief points out that the tobacco cartel is a classic violation of the
Sherman Antitrust Act. As the Sherman Act has been interpreted, price-fixing
is per se illegal, and price-fixing is the only antitrust violation
which frequently results in criminal prosecution. While some precedents
allow Sherman Act violations if they are part of a regulatory system
supervised by a state, the antitrust professors argue that the tobacco
cartel doe not fit within the scope of exceptions which have been authorized
by Supreme Court precedent.
here. Not decided on Second Amendment or other RKBA grounds. Very
straightforward application of existing doctrine on equal protection and
legal aliens. In short, state (but not federal) discrimination against legal
aliens is subject to strict scrutiny. There is an exception for
"governmental functions" which involve discretion in self-governance of the
polity–such as voting, teaching in public schools, being a peace officer,
etc. Those exceptions were not relevant here, so the South Dakota limitation
of concealed carry permits to citizens only is preliminarily enjoined.
Is the Patient Protection and Affordable Care Act consistent with the
original meaning of Constitution?
David Gans (at Balkinization) and Charles Fried (testifying before the
Senate Judiciary Committee) agree that the answer is "yes." Both of them
point to Gibbons v. Ogden and McCulloch v. Maryland.
Gibbons is certainly a good foundation for advocates of strong
federal powers. As the Supreme Court later wrote in Wickard v. Filburn,
Gibbons "described the Federal commerce power with a breadth never yet
exceeded." Indeed, Wickard itself did not purport to go any further
than Gibbons had gone. Yet too many people know Gibbons
only from expurgated versions in casebooks; thus they rely on some general
phrases in Gibbons, and they infer that the commerce power
encompasses everything that has interstate effects. Yet reading
the full text of Gibbons ends the need to build speculation upon
speculation. According to Chief Justice Marshall, the commerce power does not
that immense mass of legislation, which embraces every thing within
the territory of a State, not surrendered to the general government: all
which can be most advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every description....
(Emphasis added.) Of course one may argue that Chief Justice Marshall was
wrong, and that it would be better if "health laws of every description"
could be enacted by the national government. But that would not be an
originalist argument, and it would certainly not an argument for which one
could cite Gibbons v. Ogden.
Some advocates of the current health control law also point to
McCulloch v. Maryland to bolster their favored interpretation of the
Necessary & Proper clause. These interpretations are not consistent with
Chief Justice Marshall's own understanding of what McCulloch said,
and what he believed that "necessary and proper" includes. When McCulloch
was decided, it came under fierce criticism, and so Chief Justice
Marshall penned a series of pseudonmyous newspaper essays defending the
decision. (That the essays, like The Federalist,
were written pseudonymously makes them no less valuable.) The essays are
collected in the book John Marshall's Defense of McCulloch v. Maryland,
published by Stanford University Press in 1969, and edited by Gerald
Gunther. Having studied the essays, Professor Gunther wrote in his
introduction, "Clearly these essays give cause to be more guarded in
invoking McCulloch to support views of congressional power now
Marshall explicitly agreed with a critic of McCulloch "that the
insertion of the words necessary and proper in the last part of the
8th section of the 1st article, did not enlarge powers previously given, but
were inserted only through abundant caution." (Emphasis in original.) In
Marshall's understanding, any power necessarily includes its incidents. At
the time of the Founding and the Early Republic, the legal definition
of "incidents" was that they are inferior powers, and cannot be equal to or
greater than the enumerated power to which they pertain. Regarding
incidental powers, wrote Marshall, "Their constitutionality depends on their
being the natural, direct, and appropriate means, or the known and usual
means, for the execution of the given power."
forthcoming article in Engage (the journal of The Federalist
Society's practice groups), Rob
Natelson and I penned a hypothetical opinion on a federal health control
law, written entirely in Chief Justice Marshall's voice. The opinion
consists mainly of direct quotes from Marshall. (Rob, who knows the law and
legal culture of the Founding Era as well as anyone in the world, is the
It would be difficult to make a serious argument that the original
meaning of the commerce clause and the necessary & proper clause is
broader than Chief Justice Marshall thought them to be. Marshall's
vigorous readings of those clauses were hardly uncontested by other
Founders. For example, James Madison criticized the reasoning, although not
the result, in McCulloch. (As President, Madison had signed the
bill creating the Second Bank of the United States, which he thought to be
inconsistent with original meaning, but validated by subsequent practice.)
The current U.S. Supreme Court and the Circuit Courts of Appeal do not
always follow original meaning, but to the extent that they do care
about it, the PPACA in general and the mandate to purchase
congressionally-designed health insurance in particular cannot be
considered constitutionally valid under the commerce clause or the necessary
& proper clause.
The decision from the Northern District of Florida is available
here. In brief:
1. The 26 states lose on the argument that the mandate for drastically
increased state spending under Medicaid is unconstitutional. State
participation in Medicaid always has been voluntary, and remains so. The
states did not argue that the revisions to the Medicaid grant program
violate the 4-factor test in S.D. v. Dole as to when conditional
federal grants to states are permissible.
2. The plaintiffs win on the individual mandate. The individuals
plaintiffs, and the National Federation of Independent Businesses have
standing to challenge the mandate. So do Utah and Idaho, at the least,
because of state statutes forbidding health insurance mandates. According to
original meaning, "commerce" was trade. Citation to Randy Barnett. Even the
modern precedents require "activity" as a predicate for commerce clause
regulation. Discussion of the pre-Revolution boycott of tea, in protest
against the Stamp Act; surely the new Constitution did not empower Congress
to mandate the consumption of tea. The decision not to purchase health
insurance is not an "activity." Congress cannot use the commerce power to
mandate the purchase of broccoli or General Moters automobiles. (Contra
Chemerinsky's cited argument that Congress can mandate automobile
purchases.) The health insurance mark does not possess unique
characteristics to justify a mandate. Characterizing the refusal to purchase
health insurance as a regulatable economic activity would violate "the
non-infinity principle" (a Kopel/Reynolds term, not the court's) that
the commerce clause does not give Congress the power over almost everything.
If it has the power to compelan otherwise passive individual into a
commercial transaction with a third party merely by asserting -- as was
done in the Act -- that compelling the actualtransaction is itself
"commercial and economic in nature, and substantially affectsinterstate
commerce" [see Act sect. 1501(a)(1)], it is not hyperbolizing to suggest
thatCongress could do almost anything it wanted. It is difficult to
imagine that a nationwhich began, at least in part, as the result of
opposition to a British mandate givingthe East India Company a monopoly
and imposing a nominal tax on all tea sold inAmerica would have set out
to create a government with the power to force people to buy tea in the
first place. If Congress can penalize a passive individual for failingto
engage in commerce, the enumeration of powers in the Constitution would
havebeen in vain for it would be "difficult to perceive any limitation
on federal power" [Lopez, supra, 514 U.S. at 564], and we would have a
Constitution in name only. Surely this is not what the Founding Fathers
could have intended. See id. at 592 (quoting Hamilton at the New York
Convention that there would be just cause to reject the Constitution if
it would allow the federal government to "penetrate therecesses of
domestic life, and control, in all respects, the private conduct
ofindividuals") (Thomas, J., concurring).
3. Necessary & proper does not save the mandate. The mandate fails at
least 2 of the 5 factors from Comstock. Necessary and proper is not
an independent source of power, but rather an authorization of additional
means for ends which are themselves among the enumerated powers.
Here, the "essential attributes" of the Commerce Clause limitations
on the federalgovernment's power would definitely be compromised by this
assertion of federalpower via the Necessary and Proper Clause. If
Congress is allowed to define the scope of its power merely by arguing
that a provision is "necessary" to avoid thenegative consequences that
will potentially flow from its own statutory enactments, the Necessary
and Proper Clause runs the risk of ceasing to be the"perfectly harmless"
part of the Constitution that Hamilton assured us it was, andmoves that
much closer to becoming the "hideous monster [with] devouring jaws"that
he assured us it was not.
4. The mandate is not severable from the health control act. Defendants
themselves have argued forcefully that the mandate is absolutely essential
to the entire regulatory scheme. There is no severability clause. The
mandate is tightly integrated into the entire act.
5. No injunction. Declaratory relief is sufficient, especially since
there is a presumption that the federal government will comply with judicial
6. The entire act is declared void.
According to Cato's Ilya Shapiro, this means that the federal government
(presuming that it will obey the law) must immediately stop enforcing the
entire health control law. Of course the 11th Circuit might grant a stay,
and Judge Vinson might also do so, but as of right now, there is no stay.
The New York Times on-line "Room for Debate" feature
poses this question today: "In Arizona, the shootings have led some
citizens to call for more guns, not more gun control. Why is that?" Diverse
answers are supplied by John Donohue (Stanford), John Lott (U. Maryland),
James Alan Fox (Northeastern), Daniel Webster (Johns Hopkins Bloomberg
School of Public Health), and me.
Because, as Jack Shafer
explains on Slate, the killer was seeking publicity. And such publicity
encourages copycats, as I detailed in Rocky Mountain News columns
April 2007. Regarding copycats, Clayton Cramer's award-winning "Ethical
Problems of Mass Murder Coverage in the Mass Media," Journal of Mass
Media Ethics 9:1 [Winter, 1993–94] 26–42 is well worth reading.
There was some value in reporting the killer's name initially, in part so
that people who knew him could come forward and provide information. At this
point, however, repeating the name adds nothing useful. In general, a
publicity-seeking murderer's name should be mentioned only if
clearly necessary (for example, in an encyclopedia entury, or in a newspaper
report about judicial proceedings), and never otherwise. Let his name sink
like a stone to the bottom of the ocean. Let us remember instead the names
of the vicitms and the heroes.
of Eleanor in 1934 practicing with the revolver she had obtained the
previous year. What type is it?
Note: the Secret Service gave her the gun in 1933, when she insisted on
traveling on her own without the agents. So the gun would be whatever the
Secret Service was carrying in 1933.
The NRA National Firearms Museum collection includes
Theodore Roosevelt's 1900 Fabrique Nationale semi-automatic. The museum
reports the Roosevelt family tradition that this was the gun he kept on his
bedside table while he was President. It seems likely that this would have
been the same handgun that he carried for protection while he was President.
Does anyone have information indicating he carried a different gun?
Aaron Zelman, founder of Jews for the
Preservation of Firearms Ownership, passed away on December 21. Zelman
did excellent work in advancing the firearms policy discussion during the
last two decades. His most notable contribution was research pointing out
the frequency with which genocide has been preceded by prohibiting arms
possession by the targeted victims. For example, his co-authored book
Lethal Laws offered case studies of Nazi Germany, the Soviet Union,
Mao's China, Cambodia, Guatemala, Uganda, and Armenia. I
reviewed the book in a 1995
symposium for the New York Law School Journal of International and
Comparative Law. That book is now out of print, but a newer and updated
book on the subject,
Death by Gun Control, is available.
Although I thought Zelman sometimes stated his conclusions with more
certitude than the evidence supported, his overall contribution to the
debate was outstanding. Back in 1995, when Newt Gingrich was the then-new
Speaker of the U.S. House of Representatives, he urged the Republican caucus
to read Lethal Laws.
Aaron Zelman dedicated his life to making "Never again!" a reality and
not a platitude. He earned a place of honor with the many Jewish
scholars who have used the talents which G-d gave them to save the G-d given
freedom and lives of innocent people all over the world.