23 July 2008

The Constitution: The Second Amendment

The Objectivist
Dunkirk-Fredonia Observer
July 1, 2008

In the recent case, District of Columbia v. Heller, 554 U.S. ____ (2008), the Supreme Court held by a 5-4 vote that the Second Amendment protects an individual’s right to own a gun and that this right does not depend on whether an individual serves in a militia. Rather, it protects gun ownership and use for traditionally lawful purposes such as self-defense. In dissent, Justice Stevens argued that the Constitution only protects the right to possess and carry a firearm in connection with militia service. Because we now have a standing army that makes militias superfluous, he in effect argued that the Second Amendment is dead.

The District of Columbia prohibited handguns. More specifically, it made it a crime to carry an unregistered handgun and then prohibited anyone from registering one. It backed this prohibition with a one-year sentence for a first violation and a five-year one for a second offense. It also required lawfully owned guns, such as long guns, to be unloaded and disassembled or bound by a trigger lock or similar device. The case was brought on behalf of Dick Heller, a D.C. special police officer who carries a handgun while on duty at the Federal Judicial Center. He applied to register a handgun and his application was turned down.

The Supreme Court struck down the law as unconstitutional and held that if Heller is not unqualified, the District must grant him a license. It did not address whether there can be a licensing requirement. It also held that government at different levels may deny ownership to felons and the mentally ill, may prohibit carrying guns in sensitive places like schools and government buildings, and may regulate commercial gun sales.

The Second Amendment states that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The first clause is the prefatory clause and the second clause is the operative clause. The majority had a number of arguments for its claim that the Amendment protects an individual right.

First, on behalf of the majority, Justice Scalia argued that the operative clause supports an individual right. He began by noting that the “right of the people” phrase in the operative clause is found elsewhere in the Constitution. Elsewhere, When it is linked to rights, the phrase protects an individual right. The other areas are the First Amendment’s Assembly-and-Petition clause, the Fourth Amendment’s Search-and-Seizure Clause, and the Ninth Amendment’s protection of unenumerated rights. In addition, whenever the phrase “the people” is used in the Constitution, it refers to all members of the political community. This pattern suggests that it is unlikely the founders used the phrase “the people” to refer merely to men in the militia.

Scalia further argued that other parts of the operative clause also support this interpretation. For example, the phrase “keep and bear arms,” was applied in the 1700’s to refer to the possession and carrying of weapons that were not specifically designed for military use. Justice Stevens countered that “bear arms” refers narrowly to the carrying of arms in the service of an organized militia, but, as Scalia points out, no dictionary has ever adopted this definition. In addition, this would make “bearing arms” hard to fit with the “keeping” (possessing) of arms.

Second, Scalia argued that the individual-right interpretation fits with the prefatory clause. He points out that “militia” refers to “all males physically capable of acting in concert for the common defense.” If the goal was to preserve weapons only in this group, it is odd that the phrase “the people” would have been used. Scalia argued that the prefatory clause makes sense when viewed in historical context. What motivated this clause was the desire to prevent the federal government from disarming the militia, which was one way tyrants used to eliminate threats to themselves. Scalia points out that this motivation was consistent with the founders also valuing the right because of its connection to self-defense and hunting.

Third, Scalia pointed out that individual-right interpretation fits with the history of the Amendment. The Amendment, he argued, codified a right inherited from our English ancestors. This is why a similar individual right was found in the English Bill of Rights and Blackstone’s commentaries on the Laws of England.

Particularly worthy of note was Scalia’s observation that four state constitutions that preceded the adoption of the Amendment protected an individual right to bear arms. In the period following the adoption (1789-1820), at least seven other states adopted provisions that protected an individual’s own and carry a gun. This is strong evidence of how the founding generation viewed the right. On the dissent’s view, the Second Amendment was disconnected to the right protected by the preceding English common law and the preceding and subsequent state law. This is implausible, particularly when seen in the context of the Amendment’s language.

In response, Justice Stevens argued that the Second Amendment was motivated by the fear that the federal standing army would threaten individual liberty and the states’ sovereignty. On this account, the Amendment reflected the desire to protect the states’ militias as a means to guard against this danger. This was linked with the recognition that the state militias could check the prospect of a federal standing army only if Congress lacked the power to disarm them and the Amendment prevented disarmament. In addition, Stevens claimed there is no evidence in the historical record that the Framers wanted to protect civilian weapon possession or use. On this account, the prefatory clause set forth the purpose of the operative clause and narrowed its meaning.

However, Stevens’s opinion does little to handle the inconvenient use of the phrase “the people” in other parts of the Constitution and the oddity of supporting an interpretation which fits poorly with the animating British law, subsequent state laws, and precedent. He does make a good point about the drafting history of the Amendment weighing against the individual-right interpretation, but not enough to defeat the totality of the majority’s case.

Two objections that assume an individual right are worth noting. One objection was that the state should be permitted to ban handguns so long as it allows other weapons such as long guns. The Court responded that handguns have long been considered the typical self-defense weapon and hence should be protected. Such guns do not require much strength, are harder for an attacker to wrestle it away, and can be stored in a readily accessible place.

A second objection was that permitting handguns is bad policy because it will lead to death and destruction. The Court responded that even if this is true, it’s irrelevant. The Constitution acts to take certain policy choices off the table. That is, the Constitution has an anti-democratic function and to ignore this function is to ignore the Constitution.

This case is important for it is the one bright spot in slew of recent cases that ignored the Constitution in order to green-light government interference in every aspect of our lives. Recent examples include gutting the Commerce Clause (which limits Congressional power to a few enumerated functions and the power to regulate interstate commerce), revoking the Takings Clause (which limits the government’s ability to take property unless the government or a substantial part of the population will use it), and tearing holes in the First Amendment as part of campaign-finance laws and anti-pornography laws.

09 July 2008

Anti-Smoking Nazis

The Objectivist
Dunkirk-Fredonia Observer
June 10, 2008

New York recently increased taxes on smokers. This is yet another attempt to harass and punish smokers. This is a part of a broader trend to use the taxes, coerced settlements, and unconstitutional restrictions on free speech to bash unpopular groups. This trend is far more disgusting than is smoking.

New York raised the cigarette excise tax to $2.75, making it the highest tobacco tax in the country. The federal government taxes cigarettes at $.39 per pack, thus making every pack cost more than $3.00 per pack in taxes alone. The government makes more profit per pack than do the tobacco companies.

The high state tax explains why the same pack of cigarettes might cost around $33 on the reservations and around $60 elsewhere. This is somehow fitting coming from the state that has the highest tax burden and that is represented taxpayer-haters like Sen. Charles Schumer (D-NY) and Rep. Brian Higgins (D-NY). For the last term, The National Taxpayers Union gave them grades of 6 and 5 last year (out of 100).

In the 1998 Master Settlement Agreement, which was meant to fend off government rape of their industry, the cigarette companies agreed to pay $206 billion to the states and $1.5 billion to an antismoking campaign. It also agreed to open industry documents. Back in 1970, the federal government prohibited cigarette companies from advertising on TV. Despite the fact that they are legal adults, 18 year-olds are prohibited in four states and a couple of New York counties from buying cigarettes.

The most common argument for the taxes and settlement is that smoking costs the government money and these programs allow the state to recover from smokers what it can expect to spend on them in extra health-care costs. The problem with this argument is that it likely rests on a false premise. One 1997 study from The New England Journal of Medicine found that if all smokers quit, long-term health care costs would increase. This is because more smokers die early and medical costs increase with age. If the concern is for government coffers, we should probably subsidize cigarettes.

The notion that the government may decide to cover medical costs and then use this coverage to justify regulating every aspect of our lives is odd. If anything, this is a reason for the government to stop paying peoples’ medical bills. In addition, this argument has no stopping point. If it is correct, then the government should tax being a housewife, being fat, gay sex, and anything else that hurts its balance sheet.

The second argument is that cigarette smoking is addictive and hence the government needs to help people accomplish their own goal of quitting smoking. By addiction, I mean that smoking generates a physical change in smokers’ bodies that makes it uncomfortable to quit. This argument then slides from the fact that it is uncomfortable to quit to smokers being unable to do so. The problem here is that persons can and do voluntarily quit. One summary of findings by the U.S. Department of Health and Human Services found that almost half of adult smokers had successfully quit. Other (now dated studies) found that 90% of those that have quit did so without professional treatment. In addition, the Buffalo News cites studies indicating that for every 10% increase in the price of cigarettes, there is a 7% drop in youth smoking and a 4% drop in adult smoking. None of these facts are what one would expect were smoking involuntary.

Even if cigarettes are involuntary for some users, this is not a reason to prohibit everyone from enjoying them. People get addicted to alcohol and no one wants to bring back prohibition. On a side note, with the high tax levels in New York relative to other states, it is only a matter of time before a significant black market in cigarette develops, where buyers and sellers attempt to evade the punitive taxes. Who will be the Al Capone of cigarettes?

The third argument is that cigarette smoking is destructive and no matter what people want they need to be protected against themselves. This is the view that we are like children whom the government needs to protect against ourselves. One version of this argument sometimes takes the form that smokers don’t know that smoking is dangerous. However, no serious theorist makes this claim. That is because researchers (for example, Vanderbilt University economist W. Kip Viscusi in 2006) have repeatedly found that smokers consistently overestimate smoking-related risks of lung cancer, life expectancy loss, and total mortality loss.

A more straightforward paternalist argues that smoking is dangerous and irrational and hence we don’t lose anything if it is banned or taxed into oblivion. Again, once the government gains the authority to interfere with our smoking-related choices, it’s hard to know what aspect of our lives it cannot regulate. Such interferences are also insulting. The government has no right to dictate whether and how much we smoke or drink any more than it may tell us how often we must exercise or with whom we may have sex.

In addition, it is not obvious that smoking is irrational. Smokers enjoy their cigarettes as evidenced by the fact that they pay high prices and risk their health to use them. In addition, smoking cessation sometimes leads to weight gain. Kent Sepkowitz of Slate points out that in one 1991 study in The New England Journal of Medicine found that more than 22% of former smokers gained at least 17 pounds and 10% gained 30 lbs. How would you look with another 30 lbs? He also cites a 1995 study that found that current smokers were the thinnest, followed by never-smokers, and then the quitters. Being fat makes a person less attractive and this has costs. Economist Steven Landsburg points out that less attractive women tend to attract the lowest quality husbands and seriously overweight women get paid 7% less than other women (about the same as an extra year of college or three extra years of work experience). Are the risks of smoking or not quitting greater than those of getting a lower quality spouse or no spouse, and lower wages? This strikes me as not an easy question and one that depends on what someone values.

The fourth argument is that we need to protect the children from smoking and if that means taxing at a high rate, banning it, and carving out an exception to the First Amendment, then so be it. At Fredonia, one sign that the campus nannies put up asks people not to smoke in that area because children might see them smoke. To see what’s wrong with the sign, consider a sign asking fat people to use a different entrance because children might see them and think that it’s okay to be fat. We’d immediately reject such a sign because it is mean-spirited. This is true even though being overweight costs the government money and is harmful, irrational, and the opposite of sexy.

The attack on cigarettes is just as mean-spirited and even less justified.