Topic: Law and Civil Liberties

FBI and Patriot Act

With all the excitement over the Second Amendment ruling, I’ve hardly had a chance to welcome the scrutiny that is now being directed at the FBI for its illegal use of “national security letters” (euphemism for super-special FBI search warrants).

Throughout the debate concerning the reauthorization of the Patriot Act, government people would taunt civil liberties advocates with the line: “Where are the abuses?”  We would patiently explain that the new police “tools” (euphemism for powers) were executed in secret.  The pols would usually just repeat their mantra in a louder voice, as if secrecy was irrelevant: “But you have not identified any abuses at all!”

Well, more abuses have now come to light and it’s a pleasant surprise that the development is at the top of the news.  But we should not be surprised.  Look at the incentives.  FBI agents get awards and promotions by breaking cases.  Agents do not get jailed or fired for skirting the law or disregarding civil liberties.   There’s no teeth behind the rules that were broken, just talk (‘We are studying the report … agents may need retraining’).  Lawsuits are mostly an expensive experience about futility.

Roll back the Patriot Act.  Abolish national security letters.  Not because search warrants are perfect–far from it.  But the judicial “check” in the search warrant application process is better than relying upon the police to respect the law and our rights.

For related Cato work, go here.

Were You Surprised that DC’s Gun Ban Was Declared Unconstitutional?

Last week, a federal appeals court overturned the District of Columbia’s gun ban on the grounds that the Second Amendment protects an individual’s right to keep a functional firearm in her home.

Some were shocked by the court’s interpretation of the Second Amendment.  After all, we’ve heard for years that the prefatory clause of that amendment, “A well regulated Militia, being necessary to the security of a free State,” limits the operative clause, “the right of the people to keep and bear Arms, shall not be infringed,” to instances where arms are used in connection with service in the militia.

Those who follow Second Amendment scholarship, however, were not surprised by the court’s reasoning.  For years, scholars have examined the text, history, and context of the Second Amendment.  Those scholars built up a large body of evidence demonstrating that the “collective right” interpretation of the Second Amendment doesn’t stand up to scrutiny.

That effort arguably began with Prof. Sanford Levinson’s 1989 Yale Law Journal article, “The Embarrassing Second Amendment,” where he wrote:

For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.

Elsewhere, my colleague Tim Lynch links to reviews of several works that followed.  One of the more interesting contributions to this line of scholarship is an article by Prof. Robert J. Cottrol titled, “A Liberal Democrat’s Lament: Gun Control Is Racist, Sexist, and Classist.”  That article begins with a forceful quotation from Democratic icon Hubert Humphrey in support of “the right of the citizen to keep and bear arms.”  Cottrol concludes:

[T]he ultimate civil right is the right to defend one’s own life, that without that right all other rights are meaningless, and that without the means of self-defense the right to self-defense is but an empty promise.

Our serious thinkers have been absent from this debate for too long. The Second Amendment is simply too important to leave to the gun nuts.

The majority opinion in Parker v. District of Columbia is evidence that serious scholars heeded that call, a good summary of the debate over the Second Amendment, and a lesson about how honest, careful scholarship can defeat a very appealing myth. 

Hats off to those scholars, the litigants, and their counsel.

More on the Second Amendment Ruling

The Washington Post has a story today on the plaintiffs in the landmark Second Amendment lawsuit.  Among the plaintiffs interviewed is Cato’s Tom Palmer, who once had to use a firearm in self-defense.

Cato associate policy analyst, David Kopel, recently did a Second Amendment literature survey [pdf]. Take the list and go directly to Amazon!  Buy some for your friends as well.  Come to think of it, it’s the perfect graduation gift for third year law students-especially those who will be going to work as clerks on the Supreme Court next year!

For those interested in a shortcut through all the legal and historical material, I suggest you listen to this Cato briefing–featuring the key players who masterminded last week’s legal victory.

For more legal posts on last week’s ruling and the Second Amendment generally, visit Instapundit, How Appealing, and the Volokh Conspiracy.  For related Cato work, go here.

Mandatory HPV Vaccines: Who Benefits?

The lure of government mandates has turned Merck, if it wasn’t already, into an unethical company.  In principle, I have nothing against Merck publicizing its products and their benefits.  But Merck has exaggerated the benefits of its Gardasil vaccine and has shamelessly lobbied lawmakers to make a vaccine of questionable benefit mandatory.

At $360, the Gardasil vaccine against four types of human papillomavirus (HPV) is one of the most expensive vaccines on the market. On June 8th of last year the Food and Drug Administration (FDA) approved Gardasil for use in girls age nine to 26.

It is important to mention that technically “mandatory vaccination laws” are not “mandatory” because they all contain constitutionally required opt-out provisions.  Nevertheless when lawmakers, Merck, the press and everyone else call’s such laws “mandatory,” they in effect become so because the public perception is that they are.

Factual Errors.

Merck has misrepresented the facts, or is at least standing by dumb while others misrepresented them.  It is misleading to say the human papillomavirus (HPV) causes cervical cancer.  Not all HPV viruses cause cervical cancer and, while HPV is prevalent, those types (types 16 and 18) that cause cervical cancer are not nearly as prevalent. There are 37 or more types of genital HPV.  The rate of all 37 types together is high – 34% among women ages 14 to 24, but the rate for the types 16 and 18 that are responsible for 70% of cervical cancer cases in the U.S. – is only 1.5% and 0.8% respectively.  See the Journal Watch article published today.

Parts of the “Patient Product Information” link for Gardasil on the Merck website are vague at best and confusing and misleading at worst.   In light of the information above consider these two paragraphs:

What is Human Papillomavirus (HPV)?

HPV is a common virus. In 2005, the Centers for Disease Control and Prevention (CDC) estimated that 20 million people in the United States had this virus. There are many different types of HPV; some cause no harm. Others can cause diseases of the genital area. For most people the virus goes away on its own. When the virus does not go away it can develop into cervical cancer, precancerous lesions, or genital warts, depending on the HPV type. See “What other key information about GARDASIL should I know?”

Who is at risk for Human Papillomavirus?

In 2005, the CDC estimated that at least 50% of sexually active people catch HPV during their lifetime. A male or female of any age who takes part in any kind of sexual activity that involves genital contact is at risk. The U.S., unlike some other countries, has been very successful at reducing cervical cancer rates.  Both the actual number of cases of cervical cancer and the number of deaths from cervical cancer has been declining steadily for the past ten years.  (seer.cancer.gov/statfacts/html/cervix.html).  Furthermore, the effectiveness of condoms in preventing the spread of both HPV and HIV is well documented, as is the value of routine pap smears in preventing death from cervical cancer.

Policy Errors.

Merck is also clearly taking advantage of some very fallacious policy analysis.  It is very difficult to do a cost benefit analysis in public health because there are so many factors, known and unknown, that come into play, but to have the debate ignore considerations that are blatantly obvious is suspect.  While it is horrible that anyone should die of cervical cancer, it probably does not make sense to advocate mandatory vaccination for approximately 30,000,000 school aged girls with a brand new vaccine in order to prevent fewer than two percent of those girls from getting cervical cancer in the future.

Risk assessment is not easy, particularly when, as is the case with Gardasil, the long term effects of a vaccine are totally unknown.  Women who participated in the drug trials were followed for an average of less than three years.  Consider this totally hypothetical example: what if 90% of all school age girls are vaccinated within the next five years and then ten or twenty years from now it is discovered that the vaccine made them sterile or actually caused them to get a different type of cancer than what they were vaccinated against?  Or worse yet, because of the difference in sample size, once millions of  9 and 10-year olds were vaccinated instead of just a couple of hundred, one percent of the girls had side effects severe enough to cause brain damage or death?

The principle of unintended consequences suggests that, in all but the clearest cases, health risk assessments should be left up to individual families, not only because making such determinations rightly rests with families, but also because it simply does not make sense from a public policy standpoint to experiment on such a large portion of our population all at once.  Let parents choose for their girls, then there will be portions of the population that does and that doesn’t get the vaccine and others that received it later or earlier, or yet others that receive it while younger or older.  Allowing parents to make their own risk assessments is a natural way to protect the population from some negative unintended consequence of the vaccine affecting a whole demographic all at once.

To add insult to injury, not only has Merck left policy makers in the dark as to the myriad of possible downsides to mandatory vaccination for HPV, it has actively lobbied and paid large campaign contributions to politicians willing to support mandatory vaccination policies.  According to documents obtained by The Associated Press last month, Merck donated $5000 to Texas Gov. Rick Perry (R) on the same day Perry’s chief of staff met with the governor’s budget director and others for a “HPV vaccine for Children Briefing.”

Similar scenarios played out in at least seven other states.  This seems quite a bit like bribing politicians to do something for Merck, something that will bring Merck huge profits, very possibly at the expense of the general population – or at least at the expense of little girls.

Unfortunately, 20 states or more are currently considering mandatory HPV vaccination laws.

Banning the Ban

Since Mayor Fenty is sure to demagogue today’s D.C. Circuit ruling to death, it’s worth making a few points about what this case did and did not involve.  First, it is not about concealed carry.  There are excellent arguments for concealed carry, but Parker was not a challenge to the provisions of D.C. law that forbid carrying on the street, concealed or otherwise.  Instead, the plaintiffs in Parker challenged the provisions of the D.C. code that make it well-nigh impossible for ordinary, law-abiding citizens to own firearms for use in home defense.  Shadow representative Eleanor Holmes Norton has referred to these provisions as D.C.’s “Gun Safety Laws.”  Which is cute.  Here’s what those laws actually provide:

First, you can’t own an unregistered gun.

Second, you can’t register a handgun that you didn’t register prior to September 24, 1976, which is a nice Catch-22.

Maybe you’ve somehow managed to leap these two hurdles.  Maybe you thought ahead and registered a handgun back when disco was king.  If so, you’ve got a gun you can keep in your home.  But it must be quote “unloaded and disassembled or bound by a trigger lock” endquote, thus rendering it utterly useless if someone breaks into your home.  What you’ve got there is an expensive paperweight. 

And as hard as it is to believe, even if you own a lawfully registered pre-1976 handgun, you cannot legally carry it from room to room within your own home without a license.  The penalty for carrying a pistol in your own home without a license is imprisonment for up to one year, and a fine of up to $1,000.  And you can’t get a license. 

If the “right of the people” to keep and bear arms means anything, it means that, at a minimum, such laws cannot stand.  That is what the D.C. Circuit held today.

Landmark Second Amendment Ruling Today

Today, a federal appeals court ruled that the District of Columbia’s draconian gun control law is unconstitutional.  This is a very big deal.  The Supreme Court is very likely to review this case, which means we’re about a year away from a definitive ruling from the high court on the meaning of the Second Amendment–is it just about militias or does the Constitution guarantee an individual right to keep and bear arms? 

I doubt there will be much of an immediate practical impact on the ordinary lives of people.  Attorneys for the government, for example, will probably get a “stay” of this ruling pending its appeal to the Supreme Court.  The significance is that a debate that has been raging in academic and, to some extent, in legislative arenas, is now moving to our highest courts.  The impact on the lives of ordinary folks will likely follow slowly over the next few years–first in the District of Columbia and then in other jurisdictions.

Prior coverage of this controversy here.  For related Cato work, go here.

Update: Read the Cato Institute press release on the decision