Kopel's Blog Archive January-February 2011

Debates on gun control with Adam Winkler and John Donohue

David Kopel • February 24, 2011 7:26 pm

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 available 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 Christopher C. Cox.

Categories: Guns     No Comments

The Compact Clause vs. the Multistate Tobacco Cartel

David Kopel • February 16, 2011 12:27 am

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.

Categories: Constitutional Law, Federalism, Trade     38 Comments

Fed. Dist. Ct. enjoins South Dakota ban on concealed carry permits for legal resident aliens

David Kopel • February 11, 2011 12:10 am

Decision 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.

Categories: Constitutional Law, Guns, Immigration     51 Comments

"Health Laws of Every Description": Obamacare and Original Meaning

David Kopel • February 4, 2011 6:58 pm

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 encompass:

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 pseudonymous 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 thought necessary."

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."

In a 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 lead author.)

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.

Categories: Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court     73 Comments

Judge Vinson rules federal health control unconstitutional

David Kopel • January 31, 2011 3:53 pm

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 Motors 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 compel an otherwise passive individual into a commercial transaction with a third party merely by asserting -- as was done in the Act -- that compelling the actual transaction is itself "commercial and economic in nature, and substantially affects interstate commerce" [see Act sect. 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America 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 failing to engage in commerce, the enumeration of powers in the Constitution would have been 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 the recesses of domestic life, and control, in all respects, the private conduct of individuals") (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 federal government's power would definitely be compromised by this assertion of federal power 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 the negative 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, and moves 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 decisions.

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.

Categories: Health Care     249 Comments

More Guns, Less Crime? Answers from Kopel and others

David Kopel • January 11, 2011 7:59 pm

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.

Categories: Uncategorized     76 Comments

Why the media should not put the Tucson killer's picture on the front page

David Kopel • January 12, 2011 3:15 am

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 in December and 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 entry, 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 victims and the heroes.

Categories: Media     135 Comments

Bleg on Eleanor and Theodore Roosevelt carry handguns

David Kopel • January 11, 2011 1:35 pm

Here's a picture 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?

Categories: Guns     34 Comments

Aaron Zelman, R.I.P.

David Kopel • January 4, 2011 7:26 pm

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.

Categories: Guns     22 Comments

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