Originalists? Since when….

The Supreme Court handed down its landmark decision in District of Columbia v. Heller this past week. While the Court’s decision has been lauded by supporters of gun rights and decried by those who fail to recognize that the opinion still allows some gun control regulations, the most striking aspect of the Supreme Court’s opinion is the legal stance taken by those in dissent. The four Justices who dissented – Souter, Breyer, Ginsburg, and Stevens – usually take a position that views the Constitution as a “living document.”

This living document, they regularly argue, allows for the creation of new rights and standards that the Founders and the drafters of the 14th Amendment never envisioned. For example, the drafters of the 8th Amendment would not have envisioned a constitutional problem with the execution of child rapists – nearly all felonies were punishable by death at the time of adoption of the amendment. Yet, in the Heller decision, these Justices decided that they would become strict originalists and conclude that at the time of the 2nd Amendment’s adoption, it was not meant to protect the right of individuals to use guns for non-military purposes (i.e. hunting and self-defense).

While an argument can be made about the original intent of the 2nd Amendment, there can be little debate that modern society – the American public over the course of the last 100 years – would view the 2nd Amendment as granting an individual right to use guns for hunting and self-defense. What is startling about the position of the four Justices in dissent is that it exposes their lack of a clear and consistent overarching view of constitutional interpretation. Their dissent reveals that they decide cases based on what they feel - not on what the law is. The dissent arguably could have written a dissenting opinion that still found the DC law constitutional under a living document philosophy, but they choose not to. Their failure to do so is even more evidence of a lack of a clear approach to constitutional questions.

This lack of a clear philosophy means that the four Justices in dissent are simply acting as legislators – making decisions based on the current political climate rather than on a principled view of the law.

Whomever our next President is will likely have the opportunity to appoint at least one Justice to the Supreme Court. Let’s hope that he appoints someone with a clear philosophy rather than someone who views themselves as the ultimate decider of what is right (in their eyes) rather than what the law is.

Over The Top

After the Heller decision yesterday, I figured there would be some good Editorial comments on the subject in today's papers.

Furthermore, I expected the New York Times to be most critical of the decision, but their Editorial this morning far exceeded anything I expected.

The Editorial takes two primary issues with the decision. First, that the majority's interpretation is wrong. Second, the decision will be detrimental to public health.

The interpretation argument is an issue unto itself, but the Times' concern that the decision will result in increased homicides is unfounded.

Some selected passages from the Editorial:

"The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia's gun-control law."

"This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life."

Maybe the Times is relying upon the 1991 study in the New England Journal of Medicine by Colin Loftin, Brian Wiersema and Talbert J. Cottey. In their study, Loftin and company concluded that the restrictive licensing of guns result in a prompt decline in homicide rates. The study looked at the 9 years before the D.C. gun ban and the 9 years after and found:

"In Washington, D.C., the adoption of the gun-licensing law coincided with an abrupt decline in homicides by firearms (a reduction of 3.3 per month, or 25 percent) and suicides by firearms (reduction, 0.6 per month, or 23 percent). No similar reductions were observed in the number of homicides or suicides committed by other means, nor were there similar reductions in the adjacent metropolitan areas in Maryland and Virginia. There were also no increases in homicides or suicides by other methods, as would be expected if equally lethal means were substituted for handguns."

Striking, isn't it? Except for the fact that the causal relationship has been proven untrue.

The Loftin study failed to use per-capita statistics which was particularly important due to D.C.'s declining population at the time. From Dean Payne's analysis of the Loftin study:

"Loftin suggests that the District's 1976 restrictive handgun licensing, effectively a ban on new handguns, prevented an average of 47 deaths per year. Inexplicably, the report fails to mention the rapid shrinkage of the District's population, or the rising population of the surrounding community in Maryland and Virginia. When homicides and suicides rates are expressed as per-capita rates, any apparent post-1976 benefit enjoyed by the District vanishes."

Furthermore, Washington D.C.'s homicide rate per 100,000 climbed after the District implemented their strict gun regulations. The rate was 10.6 in 1960 and stood at 35.4 in 2005.

Even by comparison to other larger cities, Washington D.C. is much worse.

However, the New York Times provides no data or statistical measure to back their alarmist claim that homicides will begin to drastically climb as a result of the Supreme Court's decision in Heller. The Times simply relies upon emotional appeal and their disdain for any reasoning which supports gun rights.

The Sheetz Melt

The Pennsylvania Supreme Court will hear Sheetz's appeal to sell beer (6-packs) at its stores throughout Pennsylvania. This will be an important case as it could likely affect the way Pennsylvania sells beer.

There are a lot of details that matter in this case but here's the basic gist. An Altoona Sheetz received a license from the PLCB, it expanded its dining area and kitchen and only wanted to sell the six-packs to-go rather them serve them in the restaurant portion. This didn't meet the PLCB's criteria for the license and confusion around interpretations of the liquor law pushed the dispute into court. In a similar but separate case, the Malt Beverage Distributors Association is suing Wegman's. Wegman's has received a restaurant license (as opposed to the eatery license like Sheetz wished to acquire) which allows them to sell wine and hard liquor.

Probably one of the more humorous quotes from the article:

"If Sheetz can sell beer, so can Wal-Mart and Costco and all the other big chains," she [Mary Lou Hogan, executive secretary and counsel for the Malt Beverage Distributors Association, which is battling Sheetz in the case] said. "You tell me what will happen to small businesses that try to compete with those giants."

This quote is largely based in absurdity. Amazing as it may sound, large retailers (including Wal-Mart and Costco) in other states are allowed to sell beer, and guess what...the small businesses and bars are still in business. Pretty shocking!

I opined yesterday on the PLCB's control of harder alcohol (which if it were a business--as it pretends to be--would be a monopoly). So today, I'll tackle the novelty of beer in Pennsylvania.

Not that alcohol should be free flowing, but the access to these beverages is significantly limited in Pennsylvania. Although not as tight as liquor and wine, cases of beer can be purchased only from distributors. This drastically controls supply which in turn affects the market price. Allowing more stores, chains and retailers to sell six-packs would be the best thing possible for Pennsylvania. Six packs are rare throughout the state and their costs are sufficiently marked up from their wholesale, per unit price. Therefore, you have limited options in Pennsylvania. You can either buy a smaller amount at a more convenient location (bar or eatery) for a higher price or buy it in bulk from a distributor at a price that's relatively cheaper per unit. For anyone who is reasonably economical, this portends a framework which favors overconsumption.

It's not the court's job to make this change. It's the Pennsylvania legislature that should be addressing these liquor laws and adapt them so they updated for a more modern time.

A Considerable Burden

Yesterday, the NY Times penned a stinging Editorial which criticized the Supreme Court for upholding Indiana's voter identification law. The law in question required voters to show a valid form of photo identification in order to vote. The Times' Editorial essentially placed the burden of proof on the State to show that such a law is required and is reacting to an existing problem. It states:

It was supposedly passed to prevent people from impersonating others at the polls, but there is no evidence that this has ever happened in Indiana.

First of all, this assumes that a state should not enact a law aimed at preventing a problem from occurring. Rather, the only role the state legislative function should play is reacting to existing problems. The Editorial also leads one to believe that the law produces an extraordinary and unnecessary burden on voters:

The harm it imposes on voters, some of whom will no doubt be discouraged from casting ballots, is considerable.

But in the Majority Opinion by Justice Stevens, the Court concludes:

on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters

I have a hard time believing that requiring a photo identification is a considerable burden. What is the tipping point for what we classify as a "considerable burden"? Voter registration is already required to exercise your right. Is the completion of a voting registration form a considerable burden? There are poor people without the internet and they can't download the application with the simple click of a mouse. That seems like an unequal burden than the rest of us must face. These people also may not live near a Post Office so they can't mail the form back. That too seems unfair.

This is certainly meant to be facetious, but voter registration is already inherently regulated to prevent fraud. Does a photo ID aimed at further preventing fraud present a substantial marginal burden from what needed to be done before. From the concurring opinion written by Justice Scalia:

To vote in person in Indiana, everyone must have and present a photo identification
that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors....Insofar as our election-regulation cases rest upon the requirements of the Fourteenth Amendment...weighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal-protection jurisprudence. A voter complaining about such a law’s effect on him has no valid equal-protection claim because, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.

Scalia then properly positioned the standard to be on the individual:

It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

The Man, The Myth, The Legend...

The intriguing and always polarizing Justice Antonin Scalia was on "60 Minutes" last night. It's a rare appearance that touches upon almost everything (Bush v. Gore, torture, originalism) and does a great job at humanizing him by showing his personal life. At times, you can tell Scalia's judicial philosophy wasn't meant for the 5 second sound bites because it's difficult for the piece to fully detail. His approach, his philosophy, and ability to reason are all meticulously important. He is incredibly knowledgeable and presents a distinct approach. A favorite quote from the segment has to believe Scalia stating: "The Constitution isn't meant to facilitate change: it is meant to impede change." After watching the piece, I couldn't help but wonder why there are no cameras in the courtroom yet because it'd be great to see this guy in action on a daily basis.

Part I



Part II

"Significant Preferencial Affirmative Action Program"

A great commentary in the Wall Street Journal today shines light on the rather abusive nature of the American Bar Association's reaccreditation process. George Mason University is used as a case-in-point. The ABA cited GMU's lack of a "significant preferential affirmative action program." Therefore, GMU tripled its minority student population (from 6.5% to 19% in less than 5 years) at the request of the ABA. In essentially a quid pro quo, the ABA made GMU abandon its established acceptance criteria and accept lesser qualified students in order to satisfy the minority quotas and better GMU's reaccreditation odds.

Just by looking at the raw data over that time period, GMU made substantial progress in diversifying its student population at the request of the ABA. This does not even include the number of minorities who were offered acceptance and didn't enroll. In addition, the ABA noted that GMU's intentions were good as it had a longstanding and active effort to recruit minorities. All the while, the ABA dangled their accreditation in front of them as an instrument for the implementing social goals.