Happy Earth Day!

Did you know “Mother Earth” has civil rights? And that soon her self-appointed representatives can bring charges against other earthlings (that’d be us) who infringe on her rights in something called a “Ministry of Mother Earth”? I didn’t believe it either until I read this article outlining the latest brilliance coming out of the UN.

Assuming this treaty passes the earth can send her subpoenas to my attorneys c/o Independence Institute.

Can one plead the 5th to driving my SUV over the limit with the A/C blasting and the windows down? In any event we are starting my legal defense fund.

In other news, the 2011 Colorado legislative session is just about over. Let’s see if the Republicans can live up to their campaign promises about protecting freedom and free markets in the face of some questionable bills like: SCR-01 which not only threatens a citizen’s right to petition their government. And don’t forget about the enormous amount of corporate welfare coming to natural gas producers and Xcel thanks to a couple of bills that fleece ratepayers and have passed out of committee. Finally, we’ve got to deal with a potential state health insurance exchange. Health Care Policy Center director Linda Gorman laid out the case that these exchanges do not increase consumer choice and only make implementation of ObamaCare easier at the state level.

Let’s hope Republicans don’t fall prey to Caldara’s first political axiom… and instead, stick to their principles in the face of these anti-freedom bills. With a Republican controlled house these can only pass if Republicans help.

Filed earlier this week by Stephen Halbrook, in the case of Williams v. Maryland. In short, Maryland bans all handgun transportation or carry without a permit, and has a permitting process which formally declares that it will deny permits to almost everyone. As the petition explains, “the Maryland State Police, the Maryland Handgun Permit Review Board, and the Maryland courts have consistently interpreted these provisions [state regulations] to require the applicant to document, typically with police reports, that he or she has been the victim of assaults, threats, or robberies, except for applications involving certain occupations.”

Williams was peaceably transporting his handgun from his girlfriend’s home to his own home. He has been convicted, and sentenced to a year in prison. The state’s highest court, the Maryland Court of Appeals, rejected Williams’ Second Amendment challenge, because, supposedly, the Heller and McDonald affirmations of a general right to carry handguns (except in “sensitive places”) is mere dicta which the Maryland court will not follow unless a future U.S. Supreme Court cases formally announces “we meant what we already said.”

As Halbrook points out, “When the Framers intended that a provision of the Bill of Rights related to a house, they said so. [3d and 4th amendments.] They did not recognize a limited right to keep and bear arms only in one’s house. Despite this plain textual reference prohibiting infringement on the right to ‘bear arms,’ the Maryland court argued that the right need not be recognized at all because this Court has not decided cases directly on point. ‘But general statements of the law are not inherently incapable of giving fair and clear warning .. . .’ United States v. Lanier, 520 U.S. 259, 271 (1997).2 [note 2:] ‘The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.’ Id.”

Further, Heller’s right to carry language is not dicta, according to McDonald: “our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” As Halbrook points out, this inescapably “implies a right to bear arms outside the home (even if not quite as ‘notably’ as in the home).”

Williams had not applied for a permit, which would have been futile in light of Maryland’s established policy of permit denials. The Maryland Court of Appeals held the Williams therefore lacked standing to challenge the statute. Halbrook responds:

This is completely unfounded given Petitioner’s criminal conviction. Under this Court’s precedents, it is not a requirement for standing to challenge an allegedly unconstitutional permit requirement that one must apply for the permit and be denied. A long line of cases have invalidated permit requirements to exercise First Amendment rights in which the defendants who were convicted did not apply for permits. One of the more recent cases is Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 156 (2002) (invalidating permit requirement even though “Petitioners did not apply fora permit.”).

...

even if there were some general requirement for Petitioner to submit an application in order to challenge the permit statute, that requirement would be eliminated here under the doctrine of futility. This court has made it clear in various contexts that litigants are not required to perform a futile act. See,
e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 625–26 (2001) (where limitations imposed by wetland regulations were clear, and there was no indication
that kind of use sought by landowner would have been allowed, court did not require submission of “futile applications” with other agencies);

 Eugene Volokh’s analysis of the Maryland ruling is here.

It’s a double whammy of Devil’s Advocate this Friday night. Same half-hour of public affairs television excellence, but in two segments. First, I am joined by Rob O’Dea, editor of BoCo360.com and Lindsey Sterling Krank of the Prairie Dog Coalition for a debate over what to do with Boulder’s burgeoning prairie dog population. Then I am joined by new State Republican Party Chairman Ryan Call for a discussion about the role of the state party and the Colorado GOP’s chances in 2012. That’s Friday, April 22 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30PM.

Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. On Monday, I interviewed him for 39 minutes about Cato’s litigation program on constitutional issues, his traveling the country during the last year to debate the health control law, and the constitutional issues involved in the challenge to that law. The MP3 podcast is available here.

I wanted to update my readers on the continued love affair between Xcel and our General Assembly. Yesterday, unsurprising to anyone following this close relationship, Xcel was able to get it’s way again under the gold dome as HB 1291 – legislation that approves the Air Quality Control Commission’s Regional Haze State Implementation Plan – passed out of Senate committee on a 3-2, party line vote. This was despite emotionally charged testimony from Pueblo union members describing the ill effects of high energy prices on families, workers, business, and the steel industry. It passed also in the face of compelling testimony from Environmental Policy writer William Yeatman, who flew all the way from Washington, DC to testify against this monstrosity. The fact remains: once Xcel makes its mind up about something, it almost assuredly gets what it wants.

So what does this mean? Well, it still has to clear a few more hurdles before it reaches the governor’s desk. But we all know the biggest mountain has been climbed already. It also means Xcel secures another source of big time revenue. “Seeing green” means something entirely different to the fat cats at Xcel. The bottom line is this: when Xcel wins, consumers lose. They are using their cozy relationship with lawmakers to hike energy prices and garner sweet deals – at our expense. Which is all the more upsetting when they secure fat deals that are, in all likelihood, ILLEGAL on their face. We despise all forms of corporate welfare here at Independence. But perhaps the worst kind is of the state-sanctioned monopoly variety. In this case, consumers really have nowhere to go.

Want to win an Apple iPad? It’s like winning 1 million cool points and really cool new technology all at the same time!

Sign up today to get connected with us at the Independence Institute and the fine folks at Liberty on the Rocks and you will be entered to win an Apple iPad!

In an effort to reach out to a larger group of liberty enthusiasts, we are conducting this outreach contest, which runs through this Friday, April 22 and ends at midnight.

There are two ways to enter:

1) Text LIBERTY to 64274

2) Sign Up at http://m.i2i.org/contest/

What are you waiting for?! Being cool doesn’t just sneak up on you. Sign up today!

The Independence Institute is pleased to present the upcoming event: A Constitutional Guide to Fighting Federal Overreach. Come join Independence Institute constitutional scholars David Kopel and Rob Natelson on Sunday, May 15 from 1:15 to 5:00 PM at Red Rocks Community College for this important program designed to arm citizens with reliable, factual information they need to help restore liberty and constitutional government in the United States. Participants will also learn how to identify constitutional myths that, intentionally or not, can undermine the cause.

David Kopel is Research Director of the Independence Institute and one of the nation’s leading experts on the Second Amendment. The author of numerous books and articles, he also teaches Advanced Constitutional Law at the University of Denver.

Rob Natelson is Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He was formerly professor of constitutional law at the University of Montana, and has authored numerous books and articles, including the 2010 book, The Original Constitution: What It Actually Said and Meant.

Register online here. Or Call Mary at (303) 279-6536, Ext. 102. Cost is ten dollars and space is limited.

The Associate Press reports today that Senate Bill 200, which would create a health benefit exchange in Colorado, cleared a procedural hurdle and is headed to to floor of the Colorado Senate. According to the article, “A health insurance exchange allows private consumers and small businesses to pool buying power to get lower premiums.” Really AP? You sure that’s what a health insurance exchange does?

For a fuller explanation, check out Independence Institute Health Care Policy Center Director Linda Gorman’s recent Issue Backgrounder concerning SB-200. Or get the shorter version in her recent op-ed on the issue, a version of which was originally published in the print edition of the Colorado Springs Gazette, and re-printed here in its entirety:

ObamaCare is unpopular, unwieldy, expensive, arguably unconstitutional, and a prime target for repeal. It requires the states to do much of the federal government’s dirty work. Right now, the federal government is paying states $1 million to plan health insurance exchanges designed limit the kinds of health insurance policies available to state residents.

A lot of misinformation has been circulating about exchanges. Small businesses have been told that they will lower insurance premiums. In reality, the exchanges are insurance brokers. They sell approved plans offered by insurers and will support themselves by adding fees to the costs of plans sold through them.

Last November, Colorado elected Republicans to a slim majority in the state’s House of Representatives. Relying on claims that states could steer exchanges in a pro-market direction, House majority leader Amy Stephens co-sponsored HB11-200 to establish a Colorado Health Benefits Exchange. ObamaCare supporters hailed this as evidence of bipartisan support for ObamaCare ideas.

As more information became available, Representative Stephens requested that her bill not be enacted without inserting language specifying that it is not to be implemented unless the federal government grants Colorado a full waiver from all of the provisions of ObamaCare, and from the regulations flowing from it. She has since retreated from that position.

The Utah Health Exchange is often given as an example of an exchange that expands health insurance choices. In theory, it can aggregate tax-free defined contributions from different employers. If, for example, a husband’s employer contributes $300 per month to the exchange for health insurance and his wife’s employer does the same, the exchange would combine the amounts so that the husband and wife have $600 that they can use to buy either of the employers’ coverage plans.

Unfortunately, the Utah aggregator has not really been tested. It is less than a year old. It has enrolled 69 businesses covering about 2,000 people. This is a trivial number in a state with almost two hundred thousand non-farm establishments employing almost two million privately insured workers.

Massachusetts’ health insurance exchange, the only one of any size in operation, cost about $30 million to operate in 2009. Its budget ate up 3.5 percent of all payments that insurers and people buying insurance made for insurance coverage. The addition of an exchange fee to already bloated premiums explains why governors in Florida, Louisiana, and Georgia have said no thanks to state exchanges.

Even if Utah has figured out a way to expand health insurance choice, it is unlikely that it will survive the ObamaCare take-over intact. ObamaCare imposes complex requirements on both health insurance and state insurance exchanges. As no regulations have yet been issued, no one knows what kinds of exchanges will be allowed. However, the law gives President Obama and Kathleen Sebelius, U.S. Secretary of Health & Human Services, all the tools they need to prohibit local attempts to provide local choice in health insurance.

Existing evidence suggests that those regulatory tools are already being used to full advantage. In a likely attempt to disguise the true cost of ObamaCare until after the 2012 election, Secretary Sebelius has given over a thousand waivers to politically connected groups. Those waivers exempt Obama administration cronies from Obamacare’s burdensome regulations for one year.

Exchange supporters are fond of asserting that by working together “we” can use exchanges to get health insurance that “we” can afford. In fact, Stanford University’s John F. Cogan estimated that insurance premiums in Massachusetts were 6 percent higher than they would have without the reform that created the exchange. Massachusetts exchange policies are more limited than the policies available in other states. They offer limited choice and do not cover non-emergency care outside of Massachusetts.

Colorado’s exchange board would likely adopt similar rules. For example, while SB11-200 prohibits private insurers like Humana from having representatives on the exchange board, it does not apply similar prohibitions to representatives from health plans like Denver Health or Kaiser-Permanente.

ObamaCare is President Obama’s problem. Establishing an exchange would make it Colorado’s problem by imposing Obamacare’s impossible regulations on Coloradans’ health choices.

From my article Armed Resistance to the Holocaust, 19 J. on Firearms & Public Policy 144 (2007). (For Polish translation click here).

On January 18, 1943, the Germans rounded up seven thousand Jews and sent them to the extermination camp at Treblinka; they killed six hundred more Jews right in Warsaw. But on that day, an uprising began. In the beginning, the Jewish Fighting Organization had about 600 volunteers; the Jewish Military Association had about 400, and there were thousands more in spontaneous small groups. The Jews had only ten handguns, but the Germans did not realize how under-armed the Jewish fighters were.
After four days of fighting, the Germans on January 21 pulled back from the ghetto, to organize better. Another diary written in the Warsaw ghetto exulted:

In the four days of fighting we had made up for the same of Jewish passivity in the first extermination action of July, 1942. Not only the Germans were shocked by the unexpected resistance, Jews too were astonished. They could not imagine until then that the beaten, exhausted victims could rise against a mighty enemy who had conquered all of Europe. Many Jews who were in the streets of Warsaw during the fighting refused to believe that on Zamenhof and Mila Streets Jewish boys and girls had attacked Germans. The large-scale fighting which followed convinced all that it was possible.

On February 16, 1943, Heinrich Himmler ordered that the Warsaw ghetto be exterminated on April 19. The plan was to give Hitler a Judenrein Warsaw as a present for his April 20 birthday.

On that night of April 19, the Warsaw Jews partook of the Passover Seder. Since September 1939, they had eaten the bitter herbs of slavery. Now, they were drinking the wine of freedom.

The Nazi Minister of Propaganda, Joseph Goebbels, wrote in his diary, “the joke cannot last much longer, but it shows what the Jews are capable of when they have arms in their hands.” The Nazis brought in tanks. The Jews were ready with explosives. First one tank and then a second were immobilized in the middle of the street, in flames, their crews burned alive. [Uprising leader Emanuel] Ringelblum recalled:

Now the fighters as well as the non-combatant Jews who have crawled out of their hiding places have reached the pinnacle of jubilation….According to one eyewitness account, “The faces who only yesterday reflected terror and despair now shone with an unusual joy which is difficult to describe. This was a joy free from all personal motives, a joy imbued with the pride that that ghetto was fighting.”

Another eyewitness describes the confusion in the German ranks: “There runs a German soldier shrieking like an insane one, the helmet on his head on fire. Another one shouts madly ‘Juden…Waffen…Juden… Waffen!’” [Jews…weapons!]

(For a 2001 essay that Glenn Reynolds and I wrote on Jewish resistance at Warsaw and elsewhere, click here.)

Every year at the NRA Convention, the NRA Foundation puts on a day-long National Firearms Law Seminar. For attorneys in search of Continuing Legal Education that is actually interesting–or who are just in search of knowledge–the Seminar presents a nice balance of cutting-edge law, along with helpful advice for legal practice. This year’s panelists include Stephen Halbrook, David Hardy,  and me (on international law), as well as Pennsylvania Supreme Court Justice Seamus McCaffery, and legal experts from the FBI and BATFE. The luncheon speaker will be Glenn Reynolds, who may also be mixing his well-known margaritas at the cocktail reception afterwards. So if you will be in Pittsburgh on April 29, please consider registering.