Archive for May, 2012

The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today

Posted by on May 31 2012 | Constitutional History, Constitutional Law, Fourteenth Amendment, guns, History, McDonald v. City of Chicago, Politics, Popular Constitutionalism, Registration, Right to carry, supreme court

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus.

Also recently published in SSRN is a very good draft article by David Hardy, analyzing the four opinions in McDonald v. Chicago. As he persuasively shows, the arguments by Justice Stevens and Breyer against enforcing the Right to Keep and Bear Arms against the states would, if taken seriously, cast serious doubt on the legitimacy of enforcing against the states almost everything else in the Bill of Rights.

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Todd Shepherd Hits the Big Time

Posted by on May 31 2012 | Politics, PPC

Our investigative reporter Todd Shepherd uncovered a juicy story involving Colorado’s Federico Pena (think getting to DIA). In addition to being Denver mayor in the 80′s, Pena also served in Clinton’s cabinet and is currently Obama’s national campaign co-chair. What Todd uncovered is that Pena is a partner in venture capital firm Vestar, much like Mitt Romney’s Bain Capital. Also like Bain, Pena’s firm tried to turn companies around through re-structuring and layoffs – something the Obama campaign has likened to being a “vulture” or a “vampire.” Pot meet kettle right? Anyway, the story made a huge splash in the blogosphere and eventually made its way to Rush Limbaugh – who mentioned the story on his radio show last Friday. You can find the audio clip here. We are extremely proud of Todd’s work and can’t overemphasize how important it was to get a mention on the Rush Limbaugh Show. Thanks to Rush, millions of listeners heard about Complete Colorado and Todd’s work. Thanks Rush!

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Colorado Senators Prefer Warantless Federal Raids

Posted by on May 27 2012 | congress, criminal justice, Criminal Law, Economic LIberties, overcriminalization, PPC, Thuggery

Reason magazine’s Mike Riggs reports that the U.S. Senate on Thursday voted 78-15 to table an amendment offered by Sen. Rand Paul (R-KY.) to basically demilitarize the Food and Drug Administration. As Riggs describes it Paul’s amendment would have, among other things, “prohibited FDA employees (as well as all other Health and Human Services employees) from carrying weapons and making arrests without warrants.” The amendment would have also added a mens rea, or “guilty mind” requirement for criminal prosecution of laws and regulations the FDA enforces.

Senator Paul’s wholly legitimate beef with overreach and abuse by the FDA comes from armed FDA bureaucrats raiding Amish dairy farms, seizing property and arresting dairy farmers without warrants for selling milk directly from the cow (raw milk).

Both of Colorado’s U.S Senators, Mark Udall and Michael Bennett voted in favor of tabling the amendment, and thus voted in favor of continuing warrantless raids by militarized FDA bureaucrats on farmers earning a living by engaging in peaceful commerce with willing customers.

Update: While the 15 Senators who voted in favor of due process, the Fourth Amendment and reigning in over-zealous, armed federal bureaucrats were all Republicans, a sharp eyed facebook commenter notes that 28 other Republican Senators from across the country joined with Democrats to create a supermajority in the Senate in favor of warrantless raids by the FDA. Putting Bennett and Udall in poor company indeed.

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“FASTER” Goes to Court

Posted by on May 21 2012 | Government Largess, Idiot Box (TV Show), PPC, TABOR, Taxes

The Denver Post is reporting on a lawsuit that challenges the 2009 “FASTER” legislation. If you can remember, Bill Ritter signed FASTER into law in order to raise money for transportation repairs – specifically bridges and roads. How did they raise the money for the repairs. Simple: new “fees.” Under the Taxpayers Bill of Rights (TABOR), the legislature does not need our permission to increase fees, they only need permission to raise taxes. The lawsuit filed by the Mountain States Legal Foundation today on behalf of the TABOR foundation argues that the “fees” implemented by FASTER are not legitimate fees; they are clear cut taxes. Therefore, FASTER has increased taxes without our consent and thus, violated TABOR.

In addition to the fee tax increases to drum up funding, the state also went into debt for around $300 million. Also a violation of TABOR. As you can probably tell from my describing this situation, we are in full support of this lawsuit. In fact, we at the Independence Institute have provided much of the intellectual ammunition behind the suit. I want to specifically thank Fiscal Policy Center director Penn Pfiffner for taking the lead on providing the firepower against FASTER.

Take a look at our two Issue Backgrounders – one from Tom Ryan attacking the “fee” increase and the other from Rich Sokol attacking the debt increase. We also filmed an episode of my TV show, Devils Advocate with the authors. You can see the show here.

For a taste of the arguments against both the fee and debt increases, here are the executive summaries from the two papers. The “fee” increase summary:

In 2009 the General Assembly passed Senate Bill 09-108, more commonly known as FASTER. Signed by Governor Bill Ritter, the bill relies on distortions and deliberate misdirections to subvert Colorado’s Constitution and silence the voice of the people. The bill depends on continued silence for its provisions to move forward. Under FASTER, Colorado families are being forced to pay an unconstitutional tax of almost $100 million annually. This tax hits everyone who registers a vehicle in the state squarely in the pocketbook—a tax that was enacted directly by the legislature without a vote of the people.

For the unconstitutional debt increase, here is the summary:

Colorado’s citizens are supposed to have a final say before our state can borrow money. But the 2009 FASTER law subverted citizens’ rights to vote on tax and debt issues. The law allows an unelected group of bureaucrats to appoint an unelected administrator and together borrow whatever amounts of debt can be backed by FASTER funds. On December 1, 2010, they did just that. And now Colorado’s citizens are burdened with $300 million of newly issued debt—with the promise of more to come. Because of the borrowed money, it is unlikely a future legislature can ever repeal the FASTER tax. All this, and we weren’t asked!

Follow this here blog for updates on the lawsuit. We’ll be keeping a close eye on it.

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The PPACA in Wonderland

Posted by on May 18 2012 | Constitutional Law, Constitutional Theory, federalism, Health Care, Individual Mandate

That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview of some of the main constitutional and linguistic topics at play in the PPACA cases.

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Fox 31, AP Reporters on Devil’s Advocate Television

Posted by on May 18 2012 | Idiot Box (TV Show), Media, Politics, PPC

Unleash your inner political geek tonight by tuning in to the Independence Institute’s public affairs tv show Devil’s Advocate as Fox 31 political reporter Eli Stokols and Associated Press reporter Kristen Wyatt join host Jon Caldara to survey the damage from the 2012 Colorado legislative session. That’s Friday nights on Colorado Public Television 12. Re-broadcast Mondays at 1:30PM.

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Kopel vs. Ted Nugent

Posted by on May 16 2012 | Casebooks, guns

My co-authored law school textbook Firearms Law & the Second Amendment; Regulation, Rights, and Policy (Aspen Casebook Series) is currently battling with Ted Nugent’s God, Guns & Rock’N’Roll for #1 in sales rankings in the “Gun Control” category. We held the lead a few hours ago, but The Nuge has clawed his way back to #1 in the last hour.

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House Tax bleg

Posted by on May 16 2012 | History, Taxing and Spending Clause

In July 1798, Congress enacted a direct tax to raise revenue for national defense against France. The “House Tax” imposed taxes on land, houses, and slaves. As required by Article I, section 9, clause 4 of the Constitution, this direct tax was apportioned by state population. Fries’s Rebellion, which was eventually suppressed by President Adams, involved violent resistance to this tax, based on the claim that the tax was unconstitutional. Because the direct tax was properly apportioned, it seems perfectly constitutional to me. Does anyone know the specifics of the constitutional objection to the House Tax?

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New textbook: Firearms Law and the Second Amendment: Regulation, Rights and Policy

Posted by on May 15 2012 | Casebooks, guns, McDonald v. City of Chicago, Militia, Non-firearms Arms, Registration, Right to carry

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

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Please Stand Up for Colorado!

Posted by on May 15 2012 | Drug Policy, federalism, PPC, Tenth Amendment

As an organization married to principles, not politics or politicians, we at the Independence Institute have it easy. We stand unequivocally for the ideals presented in the Declaration of Independence – the document that inspired our name. Part of my job as head of the Institute is to lead the fight for free markets, individual liberty, and limited government. Part of that last principle about limiting government is adhering to the 10th Amendment  – even when inconvenient! What I mean is that even when a state does something stupid like RomneyCare, we should respect that state’s right to conduct a failing experiment for all to see. After all, the federal government has specific, enumerated powers and for everything else, it’s up to the states. Likewise, when states like ours and California legalize pot for medical use, we need to respect the experiment. Now I’m not saying that we can’t criticize a state’s experiment or that states don’t have bad ideas. Lord knows I’ve criticized Romney and his socialized medicine experiment ad nauseam. What it does mean is that we must fight on behalf of the state against federal overreach. We must take a stand for limited and enumerated powers at the federal level. Otherwise, the feds just have a blank check.

We conservatives make the case day in and day out that the feds are constantly overstepping their bounds. One way in which they do that is precisely this case – trampling on states that exercise their 10th amendment rights. In most cases we fight back in unison. But in cases where we don’t like the state law or don’t agree with the policy, many on our side fail to speak up on behalf of the state. Take for instance medical marijuana. Like it or not, our state can and has made medical pot legal. Whether you agree with that or not only makes a difference in your criticism of our STATE law. It should have no bearing on whether you stand up for Colorado against the feds.

Take a look at this: Our Colorado delegation voted recently on whether to continue funding the federal government’s war against the legal medical pot industries in states like ours. A principled defender of the 10th Amendment would vote against funding federal encroachment on state affairs. Unfortunately, our Colorado Republican delegation all voted FOR funding the federal war (Colorado dems voted against). Medical pot advocates have rightly pointed out the Republican hypocrisy regarding their “love” for the 10th Amendment as simply “selective.” I could not agree more. It is selective.

It’s very simple folks: the 10th Amendment applies universally – even for state laws you don’t like. Go ahead and criticize state laws if they are bad. But please stand up for our state when the feds decide that their prerogative reigns supreme over our state law when we have jurisdiction. The states created the federal government, not the other way around.

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