Topic: Law and Civil Liberties

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

Idaho Joins the REAL ID Rebellion

Yesterday, the Idaho Senate passed Joint Memorial 3, earlier approved unanimously by the House, to refuse implementation of the REAL ID Act.  More info here

I testified on the bill in the Idaho House’s Transportation and Defense Committee, and participated in a panel discussion at the Idaho statehouse, where some common sense was heard.

USA Today Goes 0-5 on REAL ID

This morning the Department of Homeland Security’s Office of Public Liaison was good enough to email me a copy of USA Today’s editorial supporting the REAL ID Act.  Curiously absent from the email was a copy of, or even a link to, ACLU Executive Director Anthony Romero’s opposing view.

It has been called unwise to argue with someone who buys ink by the ton, but USA Today’s praiseworthy adoption of “Web 2.0” interactivity on its Web site shows how ink is shrinking in relevance.  So let’s go ahead and see how the paper did in its point-by-point assessment of REAL ID.  Below, USA Today’s points are in bold.  My commentary in roman text:

Taking the arguments of Real ID opponents one at a time:

•It won’t make the nation safer. True, there’s no guarantee that the law would have stopped the 9/11 hijackers and that determined terrorists won’t find a way around the new requirements. Averting terror attacks, however, requires layers of security. Credible IDs are an important layer.

To be more clear, the law would not have stopped the 9/11 hijackers.  All of the 9/11 attackers could have gotten driver’s licenses legally had the REAL ID Act been the law on September 11, 2001.  Identification really doesn’t provide any security against committed threats.

“Layered security” is a legitimate way of thinking about things.  One shouldn’t rely on a single security system, because that creates a single point of failure.  However, security layering doesn’t end the inquiry.  Each layer must provide security that is cost-justified.  If creating a national ID doesn’t create a substantial protection - and it doesn’t - the national ID layer does more harm than good.  Speaking of cost …

•It costs too much. Motorists will have to spend an estimated $20 more, a relatively small sum for a standardized, tamper-proof license. For states, the costs are estimated at up to $14.6 billion over five years, offset by as much as $100 million in federal grants this year alone, on top of $40 million in federal aid already provided. Governors can make a case for more help, but cost-sharing arguments shouldn’t stop the program from going forward.

DHS’s own cost estimate is that REAL ID costs over $17 billion dollars.  That’s about $50 per man, woman, and child in the United States.  State government officials are probably not enthused to know that DHS is making available less than 1 percent of the costs to implement REAL ID.

•It violates privacy. The creation of large databases always is reason to be wary. But the new regulations don’t create a national ID card or giant Big Brother-like federal database. States will still issue the licenses and retain information used to verify identity. Making an existing database more credible threatens privacy far less than many private sector data collections do.

To most people, a nationally standardized, government-issued card that is effectively mandatory to carry is a national ID card.

No database, huh?  Here’s section 202(d) of the Act:

To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards: …

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State. 

(13) Maintain a State motor vehicle database that contains, at a minimum–

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and

(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

As to private sector data collections, these, at least, people can prevent.  But if the private sector is wrong to do this, two wrongs don’t make a right.

It forces illegal immigrants to drive without licenses or insurance. Illegal immigrants won’t be able to get Real ID licenses, but states will be allowed to issue permits allowing them to drive and obtain insurance. In any event, the nation’s immigration problems require a comprehensive solution in Washington; they can’t be solved at state motor vehicle departments.

When the state of New Mexico de-linked driver licensing and immigration status, uninsured vehicle rates in the state dropped from 33 percent to 17 percent.  Unlicensed driving, hit-and-run accidents, and insurance rates probably followed a similar course.  It’s true that states will be allowed to issue non-federally-compliant IDs, including to illegal immigrants.  Knowing that such cards are “for illegals,” illegals are unlikely to get them.  Thanks to REAL ID, these drivers will kill innocent law-abiding Americans on the highways.

It’s too hasty. This is just absurd. DHS gave states until the end of 2009 to have programs in place to replace all licenses by 2013 — a sluggish 12 years after the 9/11 attacks.

Each day that driver’s licenses lack credibility is a day of needless vulnerability. As DHS Secretary Michael Chertoff told Congress last month, “If we don’t get it done now, someone’s going to be sitting around in three or four years explaining to the next 9/11 Commission why we didn’t do it.”

Few have made the argument that REAL ID is “too hasty.”  The Department of Homeland Security’s regulations didn’t make the law workable and neither can a delay.  The real problem is the law itself, and it needs to be repealed.

Careful observers noted the contrast between Secretary Chertoff’s urgency when speaking to Congress about REAL ID and his Department’s willingness to kick implementation down the road another year and a half, to December 2009.  Cards wouldn’t even be in everyone’s hands until 2013.  This puts the lie to the idea that a national ID is a security tool at all.

USA Today’s editorial page has been rather good on privacy issues in the past, and willing to call out government hypocrisy.  They took a winger on this one and got it wrong.

A Look Over the Horizon? Look All Around!

You don’t have to look far over the horizon to know what life in America would be like if we had a national ID.  On Saturday, the Associated Press reported that a mall in Wauwatosa, Wisconsin is considering requiring ID from youths before they can enter.  This is private ordering, of course, but private ordering doesn’t happen in a bubble.  Private actors will be much more likely to check IDs if there is a nationally uniform ID system.

With IDs and credentials of different designs and from different issuers in our hands today, ID checking is relatively rare, and rarely automated.  Nonetheless, companies like Intelli-Check are pushing electronic ID-checking systems for nanny-state purposes. They would have a much easier time if all of us carried the same card and it was effectively mandatory.  Keep in mind that more ID checking equals more personal data collection.

In tiny Earlville, Illinois, a woman named Joy Robinson-Van Gilder has started a one-woman crusade against her local public school which decided to use fingerprint biometrics to administer the purchase of hot lunches in the cafeteria.  Despite her wishes, they fingerprint-scanned her 7-year-old, for a time refusing to allow him hot lunches if he wouldn’t use their system. 

The starting point for this kind of program is using it to manage lunch payments, but the ending point is a detailed record of each child’s eating habits and the school usurping the role of parents.  It’s no wonder government schools are at the center of so much social conflict.

There is nothing inherently wrong with identification or with biometrics but, unless they are adopted through voluntary choice, they will be designed to serve institutions and not people.