Archives: 04/2009

Yes, California, There Is an Individual Right to Keep and Bear Arms

Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense.  Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:

While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.

Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use.  That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights.  I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.

Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”  Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later.  The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.  We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected.  And courts covering other parts of the country – most immediately the Seventh Circuit, based in Chicago – will have their chance to make the same interpretation in due course.

Just as interesting – and potentially equally significant – is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:

But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them.   Some may disagree with the decision of the Founders to enshrine a given right in the Constitution.  If so, then the people can amend the document.  But such amendments are not for the courts to ordain.

Quite right.

New at Cato

Here are a few highlights from Cato Today, a daily email from the Cato Institute. You can subscribe here.

  • Scott Lincicome discusses how the Obama administration has put U.S. leadership in free trade in jeopardy.
  • Ted Galen Carpenter discusses President Obama’s recent trip to Mexico to meet with President Felipe Calderon.
  • Appearing on PBS, Cato Chairman Robert A. Levy debates the state of American gun laws.
  • In today’s Cato Daily Podcast, John Samples discusses what the “Tea Party” protests mean for the GOP.

Congressman Booed at Tea Party Protest

I’ve read conflicting reports on how focused last week’s tea parties were on the anti-tax and spend message.  It does appear there were  confused folks who thought the protests were platforms for nationalism, war, and partisan anti-Obama rants.  But I’m not buying the completely dismissive tone taken by some pundits who viewed the events as simply being pro-GOP rallies fueled by Fox News.

A boisterous crowd in Greenville, SC saw right through Republican Congressman Gresham Barrett’s transparent attempt to curry their favor heading into his 2010 campaign for governor of the Palmetto State:

Frankly, I can’t believe the guy made it through the five minute speech given the level of heckling and booing. Regardless of what one thinks of the crowd’s behavior, they deserve credit for knowing that Congressman Barrett voted for the TARP bailout and thus had no business faking solidarity with them, let alone speaking at the event.

The California Legislature Is Being Misled

The California Assembly Committee on Revenue and Taxation is holding hearings today on bill AB 279, the “Great Schools Tax Credit Act.” This bill is much like the scholarship donation tax credit program in Florida, which is a bi-partisan success that saves the state $1.49 for every $1 it reduces state revenue.

But you wouldn’t know that if you read the Committee’s remarkably flawed official Bill Analysis.

Among other things, the Bill Analysis glaringly misrepresents Adam Schaeffer’s ”Public Education Tax Credit” paper, incorrectly calls tax credited donations public funds, omits crucial findings from other states that favor credits, and engages in unsubstantiated speculation.

To address its failings, I penned the following letter which is being distributed to the committee today.

Dear California state legislators,

The official Bill Analysis of AB 279 suffers errors of fact and omission, misrepresents the findings of a paper published by my organization, and will mislead legislators unless these problems are corrected. To address these problems, I respectfully submit this letter.

The Bill Analysis characterizes a 2007 Cato Institute paper as arguing that “vouchers and tax credits deliver similar results” (page 7-8 of the Analysis). This is false. The paper in fact argues that:

Vouchers and tax credits are, however, very different mechanisms for delivering school choice and it is those differences that will be analyzed below. The analysis reveals that tax credits are inherently preferable to vouchers across at least five dimensions.

The above text appears on the same page as one cited in the Bill Analysis, so the author of that Analysis can reasonably be expected to have noticed the boldface section title on that page of the Cato Institute paper: “Why Tax Credits Are Preferable to Vouchers.” The dimensions on which tax credits are found to be preferable include program outcomes such as maximizing the diversity of educational options among which parents are able to choose, maximizing parental and community involvement in education, and creating incentives for long term program efficiency. This directly contradicts the characterization of our paper by the Bill Analysis.

The Bill Analysis goes on to claim that AB 279 appears to be “patterned after the Public Education Tax Credit Act model legislation developed by the Cato Institute’s Center for Educational Reform.” I would be pleased to claim credit for this if it were true, but since the PETC model legislation combines a scholarship donation credit (such as AB 279’s) with a direct credit for parents to use against their own children’s education, it does not appear that AB 279 was based on our model. It is worth noting that our organization’s name is the Center for Educational Freedom, not the Center for Educational Reform as it is referred to in the Bill Analysis.

Among the more surprising omissions in the Bill Analysis is that it fails to mention the only official government fiscal impact assessment of a scholarship tax credit program: a study released last December by Florida’s Office of Program Policy Analysis & Government Accountability. The OPPAGA study finds that Florida’s program, which is similar to AB 279, saves the state $1.49 for every dollar it reduces state revenue. This 49% annual return on investment represents a staggering windfall for the state treasury at a time when budgets are extremely tight. Not surprisingly, Florida’s legislature is currently considering legislation to expand the base of taxes to which the credits can be applied, to maximize the number of families who can benefit, and hence the state’s savings. This follows the Florida legislature’s increase of the program funding cap by 50% last year, with the support of one third of the state’s Democratic caucus, half of its black caucus, and its entire Hispanic caucus. The program is a bi-partisan success.

The AB 279 Bill Analysis is also confused in its assessment of the legal issues. It asserts that AB 279 “encourages the use of public funds for religious activities and education.” This claim is mistaken, and the Analysis unsurprisingly presents to no evidence to support it. Several court cases in Arizona and Illinois have addressed the question of whether non-refundable education tax credits represent the spending of government money, and all have found that they do not. The money donated to scholarship organizations never enters the state’s coffers, and so is not public money. The supreme court of Arizona, for example, has upheld that state’s scholarship donation tax credit program for specifically this reason, while recently striking down two voucher programs because they do use public funds in contravention of a state constitutional prohibition similar to that in California.

Finally, the Analysis is filled with unsubstantiated speculation about what might happen under scholarship donation tax credit programs, but presents little evidence from the most similar programs – those operating in Florida and Pennsylvania – on what is actually happening. Legislators would be wise to request testimony from people familiar with the actual operation of those programs and from families participating in them. Children’s futures are at stake.

Well, At Least He Should Know What Doesn’t Work

In today’s Washington Post, Chris Cillizza predicts that Mitt Romney “will move to seize the high ground (from a policy perspective) on health care over the coming months and is likely to be Obama’s leading critic when Congress takes up the legislation in the fall.” For anyone who thinks this is good news, I refer you to my post from last week regarding the many failures of Governor Romney’s last foray into health care reform.