Judicial Restraint and the Second Amendment

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, has a column on HuffingtonPost and the Atlanta Journal-Constitution arguing that the Supreme Court should uphold the D.C. gun ban and reject the idea that when the Constitution says “the right of the people to keep and bear arms shall not be infringed,” it means that people have the right to keep and bear arms. His basic argument, summed up in the title, is that “The will of the people must not be overruled.” He pounds away at that theme:

Last March, the District of Columbia saw judicial activism replace the will of the people….

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws….

[The Court of Appeals] imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst….

If the justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history and for a close reading of all the words in the Constitution. As one who served as mayor of Fort Wayne, Ind., for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

It’s a powerful argument, and it may well resonate with the conservative justices who think that judges often overreach and “substitute their own policy preferences” for those of the people’s elected legislators. But I wonder if Helmke really believes that judges should respect the will of legislators and not strike down laws. Does he believe that the Warren Court should not have struck down school segregation, which was clearly the will of the people’s elected representatives–and no doubt the people–in Kansas, as well as in South Carolina and Virginia, whose similar cases were combined with Brown? Does he believe that the Supreme Court was wrong to strike down Virginia’s law against interracial marriage in 1967? The Texas law outlawing sodomy in 2003? The Communications Decency Act in 1997? Does he indeed think the John Marshall Court was wrong to invalidate the Judiciary Act of 1789 in Marbury v. Madison? That’s the implication of his ringing words in defense of legislative absolutism.

I don’t think he believes this for a minute. I am sure he agrees with Cato’s constitutional scholars that the Supreme Court has an obligation to strike down laws that exceed the powers granted to Congress or that violate the rights protected in the Bill of Rights. He just doesn’t want the Court to apply that rule to the right to keep and bear arms. But in fact there’s an increasingly broad consensus among scholars that the Second Amendment protects an individual right to bear arms. And thus the Court should do its duty and find that an absolute ban on gun ownership by law-abiding citizens clearly exceeds any power of reasonable regulation that might be permitted under a properly understood Second Amendment.

Posted on November 29, 2007  Posted to Cato@Liberty

Privatize Marriage

Stephanie Coontz, a historian, suggests in the New York Times that government get out of the marriage business. Why, she asks, “do people — gay or straight — need the state’s permission to marry?”

For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

So, she says, “Let churches decide which marriages they deem ‘licit.’ But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.”

It’s a great idea. Indeed, it’s such a good idea that I proposed it in Slate back in 1997:

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

One of the problems with this whole idea is that, as usual, the state has entangled itself in our lives. There are 1049 federal laws that mention marital status, most of them dealing with taxes or transfer payments. If marriage becomes a matter of private contract, the federal government will still have to decide whether to recognize all such contracts for the purpose of handing out marital benefits. And that doesn’t even get into custody, inheritance, property, next-of-kin, hospital visitation and other sorts of laws usually handled at the state level. Just another example of how the intrusion of the state into every corner of society makes it difficult to privatize any aspect of life. But it’s good to see the idea getting some discussion.

Posted on November 26, 2007  Posted to Cato@Liberty

Ron Paul and the Reaction against Big Government

Kudos to Nick Gillespie and Matt Welch for dominating the Washington Post’s Sunday Outlook section the way Ron Paul supporters dominate online polls.  And kudos to the Post for running an article on the Ron Paul phenomenon by writers who actually sympathize with it. Gillespie and Welch write about “a new and potentially transformative force . . . in American politics”:

That force is less about Paul than about the movement that has erupted around him — and the much larger subset of Americans who are increasingly disillusioned with the two major political parties’ soft consensus on making government ever more intrusive at all levels, whether it’s listening to phone calls without a warrant, imposing fines of half a million dollars for broadcast “obscenities” or jailing grandmothers for buying prescribed marijuana from legal dispensaries.

Paul, who entered Congress in 1976, has been dubbed “Dr. No” by his colleagues because of his consistent nay votes on federal spending, military intervention in Iraq and elsewhere, and virtually all expansions of federal power (he cast one of three GOP votes against the original USA Patriot Act). But his philosophy of principled libertarianism is anything but negative: It’s predicated on the fundamental notion that a smaller government allows individuals the freedom to pursue happiness as they see fit. …

Paul’s “freedom message” is the direct descendant of Barry Goldwater’s once-dominant GOP philosophy of libertarianism (which Ronald Reagan described in a 1975 Reason magazine interview as “the very heart and soul of conservatism”). But that tradition has been under a decade-long assault by religious-right moralists, neoconservative interventionists and a governing coalition that has learned to love Medicare expansion and appropriations pork.

The Reason editors cite a 2006 Pew Research Center poll that found 9 percent of libertarians holding basically libertarian values. I’m sorry that out of all such calculations they picked the one that found the smallest number of libertarians. As David Kirby and I pointed out in “The Libertarian Vote,” Gallup found 21 percent. Using somewhat more restrictive criteria, Kirby and I found that libertarians were 13 percent in the Gallup and American National Election Studies surveys, 14 percent in a different Pew survey, 15 percent of actual voters in the ANES survey, and 15 percent in a Zogby survey of 2006 voters.

Of course, some of the Ron Paul supporters wouldn’t show up in any of those estimates. They’re conservatives who are fed up with Republican spending, liberals who want to stop the war, and previously apolitical folks who are attracted to straight talk. Gillespie and Welch do a good job of describing the quintessentially American spirit that draws them together.

Posted on November 25, 2007  Posted to Cato@Liberty

Naomi Wolf, Second Amendment Sister?

Naomi Wolf has an article in today’s Washington Post tied to her new book, The End of America: A Letter of Warning to a Young Patriot. The essay is actually a lot less leftist than the book. She deplores the civic illiteracy among young people that leaves them feeling ”depressed, cynical and powerless.” And she blames influences on both left and right: the Bush administration’s portrayal of “freedom and checks and balances as threats to national security,” of course, and also the No Child Left Behind Act’s emphasis on math and reading rather than civics and history. But also, she notes, “When New Left activists of the 1960s started the antiwar and free speech student movements, they didn’t get their intellectual framework from Montesquieu or Thomas Paine: They looked to Marx, Lenin and Mao.”

Perhaps her most interesting claim is this:

Teenagers and young adults often have no clue why the United States is different from, say, Egypt or Russia; they have little idea what liberty is.

Few young Americans understand that the Second Amendment keeps their homes safe from the kind of government intrusion that other citizens suffer around the world; few realize that “due process” means that they can’t be locked up in a dungeon by the state and left to languish indefinitely.

I rather suspect that this lefty writer who has written a whole book and launched an organization to “protect and defend the Constitution from assault by any President” meant to cite the Fourth Amendment, not the Second Amendment.

But maybe I’m being cynical. Maybe Naomi Wolf knows full well that it is the Second Amendment that ”keeps [our] homes safe from the kind of government intrusion that other citizens suffer around the world.” The Fourth Amendment may promise “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But without the Second Amendment, and the well-armed citizenry it protects, how secure would our rights be? Certainly there’s no Second Amendment in Egypt or Russia, the countries she notes in contrast. The Soviet Constitution guaranteed its citizens freedom from search and seizure. But it did not guarantee the right to keep and bear arms.

So welcome, Naomi Wolf. And as the effort moves forward to protect our Fourth Amendment rights and to get Congress to remember its Article I powers, remember that there’s also an effort currently underway in the Supreme Court to protect our Second Amendment rights.

Posted on November 25, 2007  Posted to Cato@Liberty

Where Have All the Republicans Gone?

In Sunday’s “Opus” cartoon, Berkeley Breathed suggests that Opus, becoming middle-aged, will naturally find himself sliding straight into the welcoming arms of the Republican party. The general idea of middle-aged conservatism is understandable enough. There’s an old saying, attributed to many different authors, that “if you’re not a socialist at 20, you have no heart. If you’re still a socialist at 40, you have no brain.”

But Breathed reveals his own advancing age when he depicts the Republican organizers wooing Opus with the promise of “Balanced budgets — and smaller government! And no nation building! We’re not the world’s policemen!” When’s the last time Republicans offered such a platform?

Oh, right, George W. Bush in 2000. But seven years is a lifetime in politics. Today’s Republican party offers massive deficits, a government virtually unlimited in size and scope, and a Wilsonian-neocon foreign policy that is both policeman and nursemaid to the world. I wonder if even a middle-aged penguin would sign up for that.

Posted on November 18, 2007  Posted to Cato@Liberty

This perfect book

Ira Levin should be remembered for his dystopian novel This Perfect Day, which ranks alongside Brave New World and 1984

Ira Levin - who died this week at the age of 78 - was known for his bestselling novels Rosemary's Baby, The Stepford Wives and The Boys from Brazil, all of which became successful movies. But another of his novels, This Perfect Day, deserves to be better known than it is. Indeed, given its tight plot about a revolt against an all-providing world government, I don't know why it hasn't gained the attention of Hollywood. As libertarian historian Ralph Raico wrote in The American Enterprise back in 1998:

This Perfect Day belongs to the genre of "dystopian" or anti-utopian novels, like Huxley's Brave New World and Orwell's 1984. Yet it is more satisfying than either. Not only is its futuristic technology more plausible (computers, of course), but the extrapolation of the dominant ideology of the end of the 20th century is entirely convincing.

The novel is set 141 years after the Unification, the establishment of a world government guided by a central computer. The computer, Uni, provides all the members of the human race with everything they need - food, shelter, employment, psychotherapy, and monthly "treatments" that include vaccines, contraceptives, tranquilizers, a drug to prevent messy beard growth, and a medication that reduces aggressiveness and limits the sex drive.

It's a perfect world, as described in the children's rhyme that opens the book:

Christ, Marx, Wood and Wei, Led us to this perfect day. Marx, Wood, Wei and Christ, All but Wei were sacrificed. Wood, Wei, Christ and Marx, Gave us lovely schools and parks. Wei, Christ, Marx and Wood, Made us humble, made us good.

Everyone loves Uni, which gives them everything they could want. And the great medical advances of the Unification ensure that everyone lives to the maximum human lifespan of 62. No one questions the wisdom and benevolence of Uni. Except Chip, whose crotchety grandfather gave him that secret and illegal nickname and urged him to try to think about things just before he got his monthly treatment. Eventually Chip's thoughts take a radical turn, and he meets a few other people who are similarly disgruntled at the perfect world. A rip-roaring plot ensues.

I love a good dystopian novel in which a few hardy rebels try to make a revolution. And Raico is right to note that Levin did a good job of imagining an extension of some of the intellectual trends of the 20th century. In today's papers we can read of politicians and intellectuals on both right and left trying to use government to increase happiness and "socially desirable behavior." Uni is the consummation of those desires, but Levin understands that government-provided happiness isn't all it's cracked up to be.

But in one way Levin was himself caught in the intellectual milieu of his times. (The novel was published in 1970.) He understood the cost to freedom of a government that controlled and provided everything. But he did seem to believe that such central planning would be efficient. He had Chip worry that if the rebels managed to shut down Uni, planes would fall out of the sky, people would die, trains would crash, food wouldn't get to the dinner table.

In this starry-eyed view of the economic efficiency of planning, Levin was led by the world's most famous economists. John Kenneth Galbraith, for instance, wrote, "the Russian system succeeds because, in contrast with the Western industrial economies, it makes full use of its manpower." And Paul Samuelson wrote in his widely used textbook: "What counts is results, and there can be no doubt that the Soviet planning system has been a powerful engine for economic growth.... The Soviet model has surely demonstrated that a command economy is capable of mobilizing resources for rapid growth." Actually, Levin, a novelist writing in the late 1960s, can be excused for his misconceptions more than Galbraith and Samuelson, economists who wrote those lines in the 1980s, only a few years before the final collapse of Soviet-style socialism.

In 1985, I had the economist Don Lavoie send Levin a copy of his fine book National Economic Planning: What Is Left?, inscribed something like "in the hopes of persuading you that central planning is no more workable than it is humane."

But this is a minor quibble about a great novel. The big problem with This Perfect Day is that it's out of print. If that isn't a market failure, I don't know what is. Publishers, filmmakers - wake up! Bring this book back into print and onto the big screen.

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Posted on November 16, 2007  Posted to Comment,Comment is free,guardian.co.uk,The Guardian

This perfect book

Ira Levin should be remembered for his dystopian novel This Perfect Day, which ranks alongside Brave New World and 1984

Posted on November 16, 2007  Posted to The Guardian

The Good News on Cultural Decay — You Read It Here First

In Friday’s Washington Post, Michael Gerson hails “a groundbreaking essay by Peter Wehner and Yuval Levin in Commentary magazine, which notes that most “social indicators” have improved:

“Over the past fifteen years, on balance, the American family has indeed grown weaker,” the authors argue, “but almost every other social indicator has improved.” Crime rates have plunged, teen drug use and pregnancy have declined, educational scores are improving, welfare caseloads have fallen 60 percent, and the number of abortions has dropped.

That is indeed important news, often lost in conservative jeremiads about the state of the culture. But I’m not sure it’s actually “groundbreaking,” considering that you could have read it more than a year ago in Cato Policy Report or indeed right here at Cato@Liberty. As Radley Balko wrote in the September/October issue of Cato Policy Report,

Nearly every social indicator is trending in a direction most of us would consider positive.

Here are just a few examples, culled from government agencies and advocacy groups: Teen pregnancy is at its lowest point since government researchers have been keeping statistics. Juvenile crime has been falling for 20 years (though there was, admittedly, a slight uptick last year). Crimes against children are down. The number of reported rapes has dropped dramatically over the last two decades, even as social stigma against rape victims has subsided. Despite a negligible increase last year, overall crime in the United States has also been in decline for 15 years.


Posted on November 16, 2007  Posted to Cato@Liberty

This perfect book

Ira Levin should be remembered for his dystopian novel This Perfect Day, which ranks alongside Brave New World and 1984

Posted on November 16, 2007  Posted to The Guardian

Earmark Hall of Shame

The New York Times reports:

Buried deep in the largest domestic spending bill of the year is money for a library and museum honoring first ladies. The $130,000 was requested by the local congressman, Representative Ralph Regula, Republican of Ohio. The library was founded by his wife, Mary A. Regula. The director of the library is his daughter, Martha A. Regula.

Other “namesake projects” in the bill include the Charles B. Rangel Center for Public Service at City College of New York, named for the chairman of the House Ways and Means Committee; the Thad Cochran Research Center at the University of Mississippi, named for the senior Republican on the Senate Appropriations Committee; and the Thomas Daschle Center for Public Service at South Dakota State University, honoring the former Senate Democratic leader.

The bill also includes “Harkin grants” to build schools and promote healthy lifestyles in Iowa, where Senator Tom Harkin, a Democrat, is running for re-election.

The federal government is taking $2.9 trillion of our hard-earned money this year. That will include the need to borrow $155 billion because even the record $2.8 trillion tax haul isn’t sufficient to cover all of America’s vital needs. Like the National First Ladies Museum and the Charles B. Rangel Center for Public Service. Really, have they no shame? Politicians tax Americans to build monuments to themselves, or to provide jobs for their families.

Projects that are actually needed–federal courthouses, perhaps, or highways–might appropriately be named for great Americans of the past. But naming monuments for living politicians is a bit too reminiscent of North Korea or Turkmenistan. Perhaps if we’re going to name public works projects for living people, they should all be named for the people who actually pay for those projects–the taxpayers. So we could name them Taxpayers’ Highway, Taxpayers’ Federal Courthouse, Taxpayers Airport.

But at least those are useful projects. The earmarks mentioned above are for fripperies and indulgences and monuments to the ego of politicians. Members of Congress should be ashamed to spend the money taxed away from working people on these tributes to themselves.

Posted on November 13, 2007  Posted to Cato@Liberty

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