Independence Institute friend and long-time contributor Ari Armstrong shot this video of Constitution scholar Rob Natelson speaking in Grand Junction on gun rights, the Second Amendment, and Colorado’s new gun controls. We can’t thank Ari enough for shooting, editing, and posting the video.

Below you’ll find the whole speech, but before you watch the whole thing, check out this 4 minute segment where Rob makes a great analogy between gun controls and sex controls. It’s pure genius.

And here is the whole 34 minute speech.

“Over? Did you say it’s ‘over’? Nothing is over until we decide it is. Was it over when the Germans bombed Pearl Harbor? Hell no! And it ain’t over now!” – John Blutarsky

Yesterday Colorado Governor John Hickenlooper confirmed Colorado as a pawn in a national game of gun control. He signed three anti-Second Amendment bills into law, making our previously liberty-loving state into the nation’s Hate State against gun owners.

Independence Institute was the lead voice educating policy makers and the Governor himself of the dangers and sloppiness of these bills. They wouldn’t listen to us. They wouldn’t listen to Coloradans. They instead listened to Mayor Bloomberg and Joe Biden, who called legislators and Hickenlooper personally.

We urged the Governor to veto the bills and send them back to the legislature for re-drafting. Our Second Amendment expert, Dave Kopel, told him that the magazine ban is horribly miswritten, with numerous constitutional problems, even beyond the core Second Amendment issue.

But the national anti-gun interests have more influence in Colorado than we citizens. Now the sale or transfer of nearly every gun magazine in Colorado will be crime, because almost every single magazine is “readily convertible” to hold more than 15 rounds. Watch our video on this here.

And due to the must “maintain continuous possession” clause to grandfather in previously owned mags, I won’t be able to teach my daughter how to shoot my gun – she cannot hold the gun that uses the original magazine. My brother, a volunteer gun range officer will not be able to assist a gun student with a malfunctioning gun. As he says in this op-ed, he will have to choose between keeping the gun range safe or becoming a criminal. A husband cannot lend his gun with an original magazine to his wife. Watch our video on this here.

All 62 County Sheriffs vigorously opposed these bills. Many say that won’t enforce them when they become law because they cannot be enforced.

We have said for years that Colorado is the national test case to turn a freedom-loving western state into a progressive strong hold. Today Colorado citizens learned the hard way that elections have consequences. Today our Governor cemented our path to become California.

But I guarantee you, this fight has just begun. We at Independence love Colorado and love liberty too much to just sit back and watch in dismay.

Today I am proud to announce that the Independence Institute will lead the civil rights lawsuit against the State of Colorado to free us from these unconstitutional laws.

Our lawsuit will be based on the Second and Fourteenth Amendments to the United States Constitution, among other grounds. The lawsuit will be brought on behalf of a large coalition of local and national law enforcement, including many of the Sheriffs who opposed the bills, disability rights organizations, gun safety organizations, civil rights organizations, and others.

Lead attorney in the lawsuit will be Dave Kopel, who is also a Denver University Adjunct Professor of Constitutional Law. Kopel served on the U.S. Supreme Court oral argument team which won the 2008 case District of Columbia v. Heller. His briefs and scholarship have been cited by Justices Alito, Breyer, and Stevens, and by the 10th Circuit Court of Appeals, among others.

This will be a long and expensive legal battle. But that is nothing new to us. We are honored to fight for Freedom, to fight for Colorado. We are honored to fight for you.

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution.

Obviously, that decades-long strategy has failed—spectacularly.

They also have long hoped that by appointing the right people to the U.S. Supreme Court, they could win case decisions restoring constitutional limits. But after 40 years, that campaign has produced only indifferent results. Actually, worse than indifferent: When, through the 2010 Obamacare law, federal politicians overreached further than they ever had before—by imposing a mandate ordering almost everyone in the country to buy a commercial product—the Court didn’t even hold the much-weakened line. Rather, the Court upheld the mandate.

The fundamental fallacy behind the federally-centered strategy lies in assuming federal politicians and federal judges will somehow restore limits on federal power. That is implausible as an abstract proposition. And practical experience over many decades also shows that strategy to be a failure.

There are several reasons for the failure of the federal election strategy. First, for this approach to work, you have to elect a majority—actually a super-majority (at least 60 in the Senate)—of constitutionalists to Congress. You also have to elect a person of similar views to the presidency. And you have to do this so they are all in office at the same time.

Second, constitutionalists face inherent handicaps running for federal office: Most are by nature non-political, and therefore don’t make good or persistent politicians. Their views prevent them from promising farmers more subsidies, seniors more health care, or students more loans. And those views also discourage campaign contributions.

Third, even when constitutionalists do achieve federal office, a critical proportion of them forget or weaken their commitments amid the enticements of Washington, D.C. and the fleshpots of power.

The Founders foresaw this sort of thing. That’s why they inserted in the Constitution’s Article V language allowing the states to respond to federal abuse by amending the document. At the behest of 2/3 of the states, all convene together to propose constitutional amendments, which 3/4 may ratify.

This provision was designed explicitly to enable the states to bypass federal politicians.

Incredibly, however, the convention method of proposing amendments has never been used. This largely explains why our governmental system is so unbalanced today.

Year after year, well-meaning people have rejected the convention approach in the vain hope that federal elections are the answer. In the light of Tuesday’s results, they need to re-assess. This reassessment is now more urgent than ever, because even more than the Constitution is at stake. So also is our national solvency.

That was the provocative title of a seminar earlier this month organized by the Istituto Bruno Leoni, Italy’s free market think tank. The event was the IBL’s 9th annual Mises Seminar. As is common at multinational seminars in Europe, the event and the papers were in English, which is today’s lingua franca among well-educated Europeans.

My favorite paper was presented by Kaetana Leontjeva, who is a Senior Policy Analyst at the Lithuanian Free Market Institute. Her paper, Old-age state social insurance: may its failure be averted?, examines the history of old-age pension systems throughout Europe, with a special focus on the USSR, Lithuania and Georgia. She shows how these programs, initially of modest size, grew to an unustainable  level that is financed by borrowing. She argues that there are only two realistic alternatives:

1. Continuing the present systems, with only “technical” reforms. This will eventually lead to complete failure of the old-age pension system, as occurred in the USSR. “ This would lead to a sudden and dramatic change in conditions of the elderly, bringing about poverty and chronic insecurity.” OR

2. “managed failure.” This means starting to shrinking the existing pension systems, by requiring that they operate on a balanced budget. Young people should not be told to depend on the current system, but should be encouraged to start making plans for their own retirement, by setting aside some of their current income to provide for their retirement. “For the ‘managed failure’ approach to work, one generation has to concede and make a sacrifice by paying for the pensions of the current retirees and for their own. In the absence of such a consent and solidarity, the generation to make the sacrifice would emerge spontaneously, and the process of an unexpected old-age social insurance failure would be much more painful.”

Another interesting paper came from Peter J. Boettke (Mercatus Center, George Mason University) and Daniel J. Smith (Manual H. Johnson Center for Political Economy, Troy University). “Monetary Policy and the Quest for Robust Political Economy” examines the failures of economists in thinking about the Federal Reserve. It is possible to imagine a Federal Reserve which conducts its affairs in an economically sound and apolitical fashion. But in practice, the Fed has often been a pump-priming engine of inflation, for political reasons. In other words, “Technical optima are nonoperational in a contemporary democratic setting.” In the wake of the Great Recession, the economics profession has been busy dissecting recent technical mistakes by Fed. Boettke and Smith argue that economists instead ought to be analyzing the only solutions which can put an end to a century of Federal Reserve failures: the adoption of a monetary policy (e.g., based on an external standard, such as a commodities bundle) which removes Fed discretion to promote inflation. While such a policy might not be politically feasible in the short run, it is the only constructive alternative, and would become more politically feasible if economists did not self-censor their recommendations based on short-term political viability.

In “Bankruptcy: Why are Banks Treated Differently Anyway?,” Mathieu Bédard (Ph.D. candidate in economics, Aix-Marseille Université, and a Fellow at the Institute for Humane Studies) classifies and analyzes the 29 different forms of government intervention into bank failures. He argues that ordinary bankruptcy is often superior to liquidations managed by the Federal Deposit Insurance Corporation.

Even if you don’t agree with the policy recommendations in these papers, they are worth reading for their thoughtful analysis.

From September 28th- 30th, the Young Americans for Liberty at the University of Colorado at Colorado Springs will host a weekend full of films, presentations, and thought provoking discussions at the Second Annual Free Minds Film Festival. The festival explores the ideas of a free society and the specific topics will include the war on drugs, eminent domain, cronyism, gun control, the trail of tears and government sponsored genocide, luck and equality, lessons from ancient Rome and Panem, the horrors of the Soviet Union, and, of course, how to change the world!

Featured titles include blockbuster “The Hunger Games,” Academy Award shortlisted documentary “Battle for Brooklyn,” locally made “Guns and Weed: The Road to Freedom,” the inspiring true story “Amazing Grace,” and “The Soviet Story” will return as a permanent tradition.

Local and national experts will speak after the films and take questions from the audience. Speakers include Lawrence Reed, President of the Foundation for Economic Education, Metropolitan State University of Denver Economics Professor Dr. Alexandre Padilla, Isaac Morehouse from the Institute for Humane Studies, Dr. Amy Sturgis Interdisciplinary Studies professor at Lenoir-Rhyne University and the Mythgard Institute, retired Denver Police Officer Tony Ryan, and Denver- based Philosopher Dr. Diana Hsieh.

Friday and Saturday night will conclude with free beer and food and great conversation at BJ’s Brewhouse courtesy of Liberty on the Rocks.

The first Free Minds Film Festival was nominated for “Event of the Year” at the International Students For Liberty Conference and attracted over 90 attendees. The event is free and open to the public and the media.

A full schedule of the weekend including trailers, biographies, and directions to the event is available at www.freemindsfilmfestival.com.

Register here for FREE!

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

Gun laws, tax increases and the Californication of Republicans are all topics of recently published works by Independence Institute writers.

In USA Today, the Denver Post and National Review Online, Independence Institute research director Dave Kopel makes the case for both resisting calls for expanded gun control in the wake of the Aurora theater shooting and for not inadvertently making a celebrity of the killer.

Also in the Denver Post, guest writer joshua Sharf explains that Denver Mayor Michael Hancock’s proposed permanent property tax increase lacks vision:

The mayor’s proposal assumes that rising home values necessarily mean rising incomes. But the Bureau of Labor Statistics reports Denver’s weekly income fell nearly 5 percent in 2011. The mayor’s mill levy override scheme would mean an immediate property tax increase of 10 percent for households who are still finding it difficult to make ends meet.

Whole thing here.

In the Colorado Springs Gazette, senior fellow Barry Fagin advises Colorado Republican against Californicating themselves:

Do Republicans want to be like Democrats, or do they want to beat them? If Colorado is to avoid California’s fate, then Colorado should avoid California’s Republicans. They should hit economic issues much harder, and stop obsessing over problems that the federal government can’t solve, are fundamentally religious in nature, or are better addressed through cultural change and not the ballot box.

Read it all here.

Each year for the past five years, the American Legislative Exchange Council (ALEC) has produced an informative bit of research called, “Rich States, Poor States.” In it, an all-star cast of authors (Art Laffer, Stephen Moore, and Jonathan Williams) pore through financial data, fiscal policy, regulatory policy, debt ratios, labor policy,  legislation and more to rank every state in accordance to their level of prosperity now and the direction they are headed. For the last 4 editions, Colorado had ranked solidly in the top 5 or 6 – with a strong showing at number 2 just 4 years ago. However, in the latest edition of Rich States, Poor States, we have fallen to number 8. Why is this? Jonathan points out that we carry a huge burden of debt, that we’ve enacted a slew of “fee” increases (FASTER, dirty dozen) recently, and we’re still not a right to work state. All of those count as negatives towards growing economically and thus, contribute to our slide down the rankings.

We had the good fortune to have co-author Jonathan Williams in town at an event here at the Independence Institute Freedom Embassy last week. Fast thinking Fiscal Policy Center director Penn Pfiffner grabbed Jonathan for a quick podcast on the latest edition of Rich States, Poor States. You can find the podcast over on iVoices.org here.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.