Tag Archives: freedom

A Second Amendment Victory

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…for the most part.  Larry Bell, of Forbes, has the tale.

Federal Judge Edmond Chang, US District Court for the Northern District of Illinois, was blunt in his ruling:

Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve.  …the ordinances are declared unconstitutional.

Some of that evidence includes the homicide numbers for Chicago.  Last year, for instance, both Chicago led the nation in the number of homicides, and Chicago’s raw homicide numbers jumped 15% even though it has the strictest gun control laws in the US—still, after its ban on concealed carry had been struck down earlier.

Beyond that, 80% of the murders and non-fatal shootings in Chicago last year were gang-related, and very few of those members sought to buy the guns used in these endeavors openly and legally.

Chang did grant Chicago six months to draft a new gun sales law, but this new drafting will need to be closely watched.  Chicago City Attorney Drew Worsek wants the new ordinance to address robust regulations targeting illegal sales and transfer practices.  The city’s judgment concerning what the definition of illegal regarding guns has already been shown, repeatedly, to be suspect.

Chang did have one thing at least partly wrong in his opinion, though:

[C]ertain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.

This is a misreading of the 2nd Amendment, which says quite clearly,

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.

There’s nothing in there authorizing government to declare a purpose for a man to keep and bear Arms, only that his right to do so shall not be infringed.  Indeed, there are two things about this: one is that the government has no role in telling a man what his purposes are; government’s role is in protecting each man’s right to pursue his own ends, his own purposes, and limiting this right only by keeping a man pursuing his own purpose from infringing another man’s right to pursue his.  The second thing is that the history behind the 2nd Amendment, and of the Constitution itself, is the right of every man to protect himself, not only from other men, but from overweening or misbehaving governments.  That is the degree of “self-defense” addressed in this Amendment.

The Administrative State and the United States

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The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.  Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

James Madison wrote those words in Federalist No 47.  And yet we have exactly this threat clear and present in the Regulatory State that’s been a-building since FDR’s time in power.  Chief Justice William Howard Taft, in his eulogy to Chief Justice Edward White, said without a trace of irony,

[T]he inevitable progress in exigencies of government and the utter inability of Congress to give the time and attention indispensable to the exercise of powers in detail forced the modification of the rule [held from our birth for the succeeding 140 years that no legislative powers can be delegated].  Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal Government, and these in due course came under the examination of this court.  Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare.

We have, indeed, that whole branch of our judiciary—Administrative Law Judges—created specifically to specialize in interpreting and applying (their interpretation of) the regulations created by our Executive Branch’s Cabinets and Independent Agencies.  The foundation of the belief that they are necessary is illustrated by the explosion of the Federal Register, the government’s primary listing of these regulations, from 2,600 pages in 1936, as FDR was just getting started with his New Deal, to over 80,000 pages by 2010, and with an additional 6,300 regulations (not pages of regulations) finalized by the end of 2012.

The current, wholly out of control state of lawmaking masquerading as rulemaking is illustrated by the byzantine (and at times wholly hidden) rules and rules-in-the-making that enact the Patient Protection and Affordable Care Act and by the Dodd–Frank Wall Street Reform and Consumer Protection Act, of which the Consumer Financial Protection Bureau is described by Todd Zywicki this way:

A centerpiece of the Dodd-Frank financial reform legislation was the creation of a new Federal Consumer Financial Protection Bureau (“CFPB”) within the Federal Reserve.  Few bureaucratic agencies in American history, if any, have combined the vast power and lack of public accountability of the CFPB.  It is an independent agency inside another independent agency, presided over by a single director who is insulated from presidential removal.  Additionally, the Board is outside of the congressional appropriations process.  Finally, its actions are unreviewable by the Federal Reserve….

Proponents of the CFPB argue that extreme independence is justified to insulate it from political pressures.

The plethora of laws that a Progressive government thinks is necessary to guide and direct men’s lives and businesses drives the imperative to generate regulations in order to give flesh and “clarity” to those laws.  But these regulations, these rules, are enacted [sic] by men in sections of government whose placement wholly isolates them from effective oversight by government’s employers—us.  This unaccountability and lack of control over functional lawmaking in which these men engage is an even greater threat to the very freedoms which we hire this government to protect and to facilitate than are that plethora of laws itself.

Keep in mind that lawmaking is properly and wholly a political matter; it must be subject to what those CFPB proponents fear: “political pressures.”  Making law is the task of We the People through our elected representatives in the Congress.  Regulations and rules are a subset of law, and so these must be dealt with by us and our representatives, not by the Executive Branch, whose sole function in this context is to enforce the law, not make new ones or modify or “clarify” existing ones.

Neither can the judiciary have any role in lawmaking; its sole function in this context has exactly two parts: first to decide whether the law before a judge is legitimate, that is, Constitutional (and if not to strike it down), and second if it is legitimate, to apply it as it is written, and not as that judge thinks it ought to have been written or as that judge creatively “interprets” it in order to “update” it for his (understanding of the) times.

Even could the argument be made that regulations are a separate class of lawmaking, wholly different from the statutory lawmaking that We make through our representatives, We have identified lawmaking, in the Constitution which We ratified, as the sole province of us and our Congress.

To solve this, aside from withdrawing the vast majority of regulations currently on the books (an entirely necessary endeavor) we must, which Taft failed to understand, rescind that excess of laws, and we must sharply curtail, if not withdraw entirely, Congress’ delegation of rule-making authority to the Executive Branch.

Full Stop.

Another Battle

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…in the Progressive war on women.

Here’s it’s the Obama administration’s response to Justice Sonya Sotomayor’s injunction staying Obama’s  contraceptive mandate as it applies to the Little Sisters of the Poor and their nursing home/hospice in Colorado.  Sotomayor, in issuing her injunction, had ordered the Obama administration to respond by last Friday morning with their argument for why the injunction should be lifted.

Solicitor General Donald Verrilli’s response boiled down to the Little Sisters have no legal claim: they aren’t harmed by authorizing contraceptives to be covered by an insurer in their name because they aren’t offering the coverage directly.  Verrilli went on:

…are not required to offer group health plans in the first place.  [They can make a] “choice” between two legal options: provide a group health plan or risk payment of the tax.

As The Wall Street Journal put it,

This case is simply a raw assertion of state power directing the religious to follow orders.  Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs.

Distressing to Whom?

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Scientists have zapped an electrical current to people’s brains to erase distressing memories, part of an ambitious quest to better treat ailments such as mental trauma, psychiatric disorders and drug addiction.

In an experiment, patients were first shown a troubling story, in words and pictures.  A week later they were reminded about it and given electroconvulsive therapy, formerly known as electroshock.  That completely wiped out their recall of the distressing narrative.

“It’s a pretty strong effect.  We observed it in every subject,” said Marijn Kroes, neuroscientist at Radboud University Nijmegen in the Netherlands and lead author of the study, published Sunday in the journal Nature Neuroscience.

And

The hope is that one day it may be possible to selectively eliminate a person’s unwanted memories or associations linked to smoking, drug-taking or emotional trauma.

This is an extremely promising tool for helping folks overcome serious troubles.  Like many powerful tools, though, it can be very dangerous.

“Distressing memories.”  Distressing for whom?  The individual? Or Government?  Rudimentary efforts have already been tried: the Soviet Union’s Gulag.  It’s been warned of for a long time: Clockwork Orange.

Now that this sort of thing is coming to fruition, the tool wants, badly, close monitoring and control, and not only by our government.

Foolishly Lawless

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Are there other ways of being lawless that matter?  Of course there are, but that’s for a different post.  The foolishness of this example of the Obama administration’s lawlessness is the subject here.

HHS Secretary Kathleen Sebelius has announced (sotto voce, via a letter to selected Senators) the latest rewrite non-legislatively effected change to the Obamacare law.

She…would allow people who got cancellations and could not find affordable new coverage to qualify for a “hardship exemption” in order to avoid a penalty next year for not having insurance.

Further…those individuals will be able to purchase bare-bones plans [catastrophic coverage plans] that until now were available only for people under 30.

…expected it to impact fewer than 500,000 people.

Senator Marco Rubio (R, FL) remarked,

Holding a fire sale of cheap insurance is not a responsible fix for a broken program.  This is a slap in the face to the thousands of Americans who have already purchased expensive insurance through the ObamaCare exchanges.

There are more than 5 million Americans in this sinking canceled insurance plan boat, though, not a half million.  And what about those folks who have already re-signed into suboptimal (but more expensive to make up for it) Obamacare plans about whom Rubio worries?  The open enrollment period doesn’t end until next March: how many of those folks will cancel their shiny, new, more expensive Obamacare plans and pick, instead, the Sebelius Plan—to the detriment of the Obamacare law cost structure?

Moreover, the “hardship exemption” under which Sebelius is offering her Plan says this about eligible hardships [emphasis added]:

…experienced financial or domestic circumstances, including an unexpected natural or human-caused event, such that he or she had a significant, unexpected increase in essential expenses that prevented him or her from obtaining coverage under a qualified health plan.

Is Sebelius really saying that Obamacare is a Man-Caused Disaster?

Finally, all this Individual Mandate…folderol…is coming after Obama and his Senate cronies shut down the government rather than delay the Individual Mandate.

Just how idiotic can one grown, adult President and one grown, adult Cabinet Secretary be in one lifetime?