Washington Post columnist Richard Cohen today laments what he calls the “cratering of liberalism.” Cohen remembers that the “liberal agenda once included confiscating handguns and abolishing the right to own one.” Yes, agreed, we should remember that. Liberals would really like Obama to channel Michael Douglas, who played a liberal commander-in-chief in the Rob Reiner/​Aaron Sorkin film, The American President (excerpt below). Should we do this in the inaugural address or the state of the union? That’s probably the debate among Obama’s speechwriters. 

Legislation rushed through passage is invariably bad law. And the gun bill that emerged overnight from the New York State Legislature, on its first day back, will surely be no exception. Written in private by Gov. Andrew Cuomo and legislative leaders and completed late yesterday, “rank-and-file Senators had only a few minutes to read the legislation before voting on it,” the New York Times reports. “If there is an issue that fits the definition of necessity,” Cuomo intoned, “I believe it’s gun violence.” Really! So pressing are events that the normal three-day waiting period, so legislators could study the bill, had to be waived?

So what do we have? A bill that bans, as “assault weapons,” semiautomatic pistols and rifles with detachable magazines and “one military-style feature,” and semiautomatic shotguns with such a feature. And what is a “military-style feature”? We’ve seen this play before. New Yorkers who already have such guns can keep them, but they’ll have to be registered. Expect litigation on all of those points. Once again, it’s the law-abiding people this bill will affect, not those we have to worry about.

But if the gun part of the bill is problematic, the mental health part is even more so. Mental health professionals would be required “to report to local mental health officials when they believe that patients are likely to harm themselves or others,” the Times tells us, the failure of which would not be sanctioned if they acted “in good faith.” Here again, as with the guns, we imagine that all we need is more law to address what is doubtless the most difficult part of the problem. The implications for confidentiality and, more important still, for encouraging people to seek help, are deeply troubling.

Yet the most important measure that could be taken immediately—one that has proven to reduce deaths from random mass shootings—seems to be missing altogether from this bill, despite the fact that two-thirds of Americans support it. It is to have armed security officials at schools and other currently “gun-free zones.” This act is likely to have little effect on the real problem, however much it makes those who promoted and passed it feel good. 

The Texas Review of Law and Politics has just published as a law review article an expanded, annotated version of the speech I’ve been giving all over the country regarding the Supreme Court’s ruling in NFIB v. Sebelius. The title, which I hope will hold up with the passage of time, is “Like Eastwood Talking to a Chair: The Good, the Bad, and the Ugly of the Obamacare Ruling.” Here’s the abstract:

The constitutional challenge to Obamacare was a case that comes along once every generation, if not less often. Not because it could affect a presidential election or was otherwise politically significant, but because it reconsidered so many aspects of our constitutional first principles: the fundamental relationships between citizens and the government and between the states and the federal government; the role of the judiciary in saying what the law is and checking the political branches; and the scope of and limits to all three branches’ powers. This case was not about the state of health care in America or how to fix this troubled area of public policy. It was instead about how to read our nation’s basic law and whether Congress was constitutionally authorized to use the tools it used in this particular instance.

Anyone reading this article will already know at least the basic outline of the Supreme Court’s ruling. As I wrote on the leading Supreme Court blog in the wake of the decision, those who challenged the law won everything but the case. That is, the Supreme Court adopted all of our legal theories regarding the scope of federal regulatory authority and yet Obamacare stands. This article explains and elaborates on those basic points, the good (Commerce Clause, Necessary & Proper Clause, Spending Clause), the bad (the taxing power), and the ugly (John Roberts’s reasoning and motivations).

In sum, the Constitution’s structural provisions — federalism, separation and enumeration of powers, checks and balances — aren’t just a dry exercise in political theory, but a means to protect individual liberty from the concentrated power of popular majorities. Justice Kennedy said it best in summarizing the joint dissent from the bench: “Structure means liberty.” If Congress can avoid the Constitution’s structural limits by “taxing” inactivity, its power is no more limited and liberty no better protected than if it were allowed to regulate at will under the Commerce Clause. The ultimate lesson to draw from this two-year legal seminar, then, is that the proper role of judges is to apply the Constitution regardless of whether it leads to upholding or striking down legislation. And a correct application of the Constitution inevitably rests on the Madisonian principles of ordered liberty and limited government that the document embodies.

As should be clear from this article, I’m still not over the ruling – by recognizing that Obamacare was unconstitutional but shying away from striking it down, John Roberts fundamentally shook my faith in our system of justice – and probably never will be.

That’s the title of my op-ed that ran in the (Newark) Star-Ledger today. Here’s an excerpt:

Even making it illegal to own a gun wouldn’t prevent a criminal or madman from doing his malevolent deed. Robust policies to prevent legal gun ownership only translate to guns being overwhelmingly possessed by those willing to break the law—i.e., criminals.

Indeed, Connecticut has some of the strictest gun laws in the country, and Sandy Hook Elementary is a “gun-free zone”—as was the movie theater in Aurora, Colo.

None of the measures at the top of gun-control advocates’ agenda—such as banning so-called assault weapons (ordinary rifles with certain cosmetic features like pistol grips or bayonet mounts) and closing gun-show loopholes—would’ve averted these shootings. The Newtown killer stole the pistols he used from his mother.

We’d be much better off focusing on improvements we can make in identifying and treating mental illness—the common factor in all these incidents—and ensuring that disqualifying records make it into the database used for background checks (which would’ve stopped the Virginia Tech shooter from buying his guns).

I actually wrote that piece nearly a month ago, right after the Newtown shooting, but of course this issue isn’t going anywhere. As we’ve been discussing here at Cato how best to advance our ideas, one of my colleagues mentioned that it’s become obvious that the Obama administration has embarked on a concerted strategy for driving the gun debate. We can expect a new “story” every other day: Joe Biden meets with all and sundry; New York Governor Andrew Cuomo announces his plan to ban so-called assault weapons; Mayor Rahm Emanuel announces Chicago’s plan to evade last month’s Seventh Circuit ruling striking down Illinois restrictions on bearing arms. Next week, the Biden Task Force will announce its recommendations, then Sen. Dianne Feinstein announces a hearing in the Senate Judiciary Committee, then Obama issues executive orders…

I don’t want to prejudge the various proposals that will come from Congress, the executive branch, and state officials, but I fear that most will do real damage to the individual right to own guns for legitimate reasons (self-defense, hunting, defense against tyranny) while not affecting incidents of gun violence one iota. As I say in my op-ed, we should pursue certain sensible reforms—e.g., tightening the system of background checks—but further regulations and restrictions without addressing underlying social problems and mental illness issues will only deter the law-abiding rather than those who don’t care about the law. I fear more faux “gun-free” zones of the sort exploited by the Aurora and Newtown killers, but at least the gun-controllers will feel good about having done “something.”

For a longer discussion of these issues, watch the forum I moderated on Wednesday. And, as Tim mentioned below, the Washington Post conducted an insightful interview on gun control with Cato’s chairman, Bob Levy.

From ABC​News​.com:

A gun-carrying grandmother in Milwaukee foiled an attempted robbery when she pulled a firearm on the suspect as he grabbed for her grocery store cash register.

Ernestine Aldana, 48, was behind the counter at the San Ignacio Market when a man in a dark hat pulled a knife on her and attempted to rob the store register, police said. Aldana pulled a handgun from behind the counter on the man, causing him to flee.

Americans use guns every day to stop mayhem. It’s nice to see some of those incidents reported in the news during the on-going gun control debate.

Cato hosted a book forum the other day for Craig Whitney’s Living with Guns: A Liberal’s Case for the Second Amendment. Since Whitney is a former reporter for the New York Times, I took the opportunity to ask him why reporters will ignore stories in which civilians use guns in self-defense or even write stories that omit the details where a civilian used a gun to stop a criminal attack. For example, the newspaper article might say something like “students were able to subdue the gunman” instead of letting readers know that “students had carry permits and used their own weapons to confront the gunman, who then surrendered.”

Whitney’s reply (at the 70:30 minute marker) was that it was just bad reporting. But it wasn’t one reporter who botched one story; dozens of stories have made the same “error.” And I supplied just a single incident—there are others. I agree with Whitney that it is not a liberal conspiracy, but I do think there’s a bias at work here. And think about the consequences: the average American is bombarded with news stories about criminals using guns in violent attacks, but there’s very little reporting when an ordinary civilian uses a gun to put a stop to a criminal attack. No wonder polls jump around.

To learn more, check out the paper Cato published last year that compiled scores of cases where civilians used guns to defend themselves.

Update: Cato Chairman Bob Levy is interviewed in today’s Washington Post on the Second Amendment and gun control.

Update II: Indiana home invasion ends with victim getting gun and shooting at suspects.

If you thought the policy side of the “American Taxpayer Relief Act of 2012” is bad, did you notice that there’s a constitutional problem too? I’m sure there’s more than one, actually, but this one was easy to spot without even digging into the gory details.

Recall that the fiscal cliff bill was first passed by the Senate in the wee hours of New Year’s Day, and then seconded by a vote of the House some 20 hours later. And yet, Article I, Section 7, Clause 1—known as the Origination Clause—states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” 

Far from being “archaic, idiosyncratic and downright evil”—as Georgetown law professor Mike Seidman claimed as part of his argument for throwing out the Constitution altogether—this provision serves, or at least is supposed to serve, the very real and timeless purpose of keeping the taxing power as close to the voters as possible. Mindful of the potential for abuses of this awesome power (see, e.g., John Roberts on Obamacare) the Constitution’s authors chose to give it to the congressional body that is elected every two years directly by people in local districts (the House), instead of the one whose members serve alternating six-year terms and weren’t initially directly elected (the Senate). As Cato adjunct scholar Tim Sandefur explains in a forthcoming law review article (footnotes/​citations omitted):

When the Anti-Federalist “Brutus” warned that the taxing power, “exercised without limitation,” will “introduce itself into every corner of the city, and country” and “light upon the head of every person in the United States” crying “GIVE! GIVE!” the Constitution’s supporters answered that this risk was minimized by the political checks over the taxing power. “The exclusive privilege of originating money bills [belongs] to the house of representatives,” wrote Alexander Hamilton. This would ensure that the power to tax belonged to “the most popular branch” of the government, “the favorite of the people.” James Madison reiterated this point: the “principal reason” why the House was given the power “of originating money bills” was that the Representatives “were chosen by the people, and supposed to be the best acquainted with their interest and ability.” Perhaps the point was put best by George Mason, who considered the Senate “[a]n aristocratic body” which “should ever be suspected of an encroaching tendency,” and believed that “[t]he purse strings should never be put into its hands.”

So what happened last week? Did Harry Reid, John Boehner, and Barack Obama simply agree to ignore the Constitution? (Specifically here, I mean—we know they do generally where federal power is concerned.) Were the House and Senate parliamentarians overruled by a naked political deal?

No, actually what happened is an end-run around the Origination Clause that alas happens with some regularity (and at the hands of both parties): some other revenue bill that passed the House but hasn’t been acted on by the Senate (deliberately or not) gets “amended” by a complete removal and replacement of its entire contents, including the title. This is, of course, what happened with Obamacare, as Sandefur again explains:

On November 19, 2009, Senator Harry Reid submitted an “amendment” to a bill that the House had passed the previous month, H.B. 3590. That bill, the “Service Members Home Ownership Act of 2009,” provided incentives for veterans to buy houses. Reid’s amendment struck out the entire text of H.B. 3590, and replaced it with what became the PPACA—including the Individual Mandate and 17 other separate revenue-raising provisions, estimated to increase federal revenue by $486 billion by 2019. Although this “strike and replace” procedure—sometimes called “gut and amend”—is not uncommon, the Court has never determined whether Congress can use the trick to get around the Origination Clause’s mandate.

(The reason Tim knows so much about this seemingly obscure – if important – clause is that he’s the lead attorney on Pacific Legal Foundation’s case, Sissel v. U.S. Dept. of Health & Human Services, that challenges Obamacare’s individual mandate in its metamorphosis into a tax.)

And so too with the “American Taxpayer Relief Act of 2012,” which was a true tax-relief bill of the same name that House Republicans (and 19 Democrats) passed on August 1, 2012. That bill was naturally DOA in Harry Reid’s Senate, but it did become a useful shell for last week’s shenanigans.

So there you have it: What’s a little Constitution between friends?

Oh, and a langiappe about our favorite new law: given that it was passed on January 1—but alas has not gone away with that day’s hangovers —even the year in the title is wrong. To be fair, however, it was both American and an act of Congress.

In an effort to show progress with implementation of our national ID law, the Department of Homeland Security issued a press release just ahead of Christmas reporting that thirteen states had “met the standards of the REAL ID Act of 2005.” Their compliance is not actually compliance, though. Read on…

Next Tuesday, another ‘deadline’ for REAL ID compliance arrives. Due to widespread public opposition, the majority of states and their people are not complying with the national ID mandate. Many states “have not provided sufficient information, at this time,” the DHS release says. I think that’s bureaucratese for: “They’re ignoring REAL ID.” But it doesn’t matter. The states ignoring REAL ID have been granted deferments. I’ve been looking for the Federal Register notice making this deadline extension official so I can put it next to the deadline extension from March 9, 2007, and the one from January 29, 2008, and the one from December 28, 2009, and the one from March 7, 2011.

The states that have tripped over themselves to follow this federal mandate should feel slightly burned. They’re no better off than the states that did nothing. And states need never comply.

We all know by know that the federal government will never use the lever that REAL ID gave them to “force” compliance on the states. The law says that the federal government can refuse IDs from states that aren’t in compliance. Basically, that means TSA would send most American travelers to secondary search. But that means that the federal government—not the states—would be blamed for travel nightmares (even worse than we already experience) all over the country. Deadline extension after deadline extension after deferment make clear that the federal government is not going to hold up air travelers because of REAL ID.

Now, the states that DHS says are complying aren’t really complying. You see, DHS long ago retreated from the requirements of REAL ID and established a set of “material compliance benchmarks.” These are 18 steps that bring one closer to REAL ID compliance, but they are not REAL ID compliance. And many of them are things that states were doing anyway. So, to the extent DHS is trumpeting progress, it’s a rooster taking credit for the sunrise.

Nonetheless, REAL ID ‘progress’ is the stitching together of a system to track and control us through our nationally uniform identity cards. It’s the system that will be used to control our access to work, to housing, to medical care and medicine, to guns, to credit and financial services, and much more. Big government, thy administrative tool is national ID.

The DHS release is a little more muted about the $263 million dollars it has spent or distributed on REAL ID so far—a quarter of a billion dollars toward a national ID system nobody wants. The continued spending is probably what keeps a small coterie of DMV bureaucrats and allied groups pushing for a national ID.

These national ID advocates will be well-represented at a Heritage Foundation event on REAL ID January 28th. Heritage is bringing in a Department of Motor Vehicle bureaucrat from Connecticut, a representative of a small national ID advocacy group, and the co-author of a recent Government Accountability Office update on REAL ID. I’ll hope to learn—as I’ve never been able to do before—how the national ID program would increase our security more than it would cost us in dollars and privacy—a quarter billion dollars, so far, and still counting.