Topic: Political Philosophy

Chemerinsky on Parker v. District of Columbia

On March 14, The Washington Post ran an op-ed by Duke law professor Erwin Chemerinsky. I sent the following letter to the editor in response:

Prof. Erwin Chemerinsky claims [“A Well-Regulated Right to Bear Arms,” March 14] that the federal court of appeals for the D.C. Circuit “interpreted the Second Amendment as bestowing on individuals a right to have guns,” and as “creating a right for individuals to have firearms.” Yet the court took great pains to explain that the amendment neither creates nor bestows the right to keep and bear arms. According to the court, “The wording of the [amendment] indicates that the right to keep and bear arms was not created by government, but rather preserved by it,” and that it is “a right that pre-existed the Constitution like ‘the freedom of speech’” [emphasis in original].

The fact that both Prof. Chemerinsky and the Post’s editorial page (which had previously criticized the court’s opinion) missed that laboriously made distinction suggests that they might have read the opinion more closely before criticizing it.

Prof. Chemerinsky also claims that even if courts conclude that the Second Amendment protects an individual right to keep and bear arms, the D.C. gun ban should nevertheless stand. He argues that the Supreme Court should not apply “strict scrutiny” to laws that curtail the right to keep and bear arms because he sees no reason to distrust legislatures in this area. Instead, he argues that the courts should apply the less rigorous rational basis test to such laws, which they have applied to laws restricting the constitutionally protected right to property. Chemerinsky concludes that the D.C. gun ban should be upheld as being “rationally related to achieving [the] legitimate government purpose” of reducing gun violence.

I see serious problems with Chemerinsky’s case. First, the Constitution gives no indication that some of the rights it secures should receive less protection than others. Second, even if one were to accept that premise, the right to self-defense is leaps and bounds more important than the right to property or the right not to be discriminated against by the government on the basis of race. Even if we accept that some constitutional rights are more equal than others, then by Chemerinsky’s rationale the courts should apply strict scrutiny because there is ample reason to doubt any legislative act that infringes on so important a right. Third, as my colleague Bob Levy points out, “In Carolene Products, economic and property rights are relegated to second-tier status, but the rights expressly secured by the Bill of Rights – like the right to keep and bear arms – get top billing. So Chemerinsky’s suggestion that rational basis applies is at odds with Carolene.”

Finally, the D.C. gun ban should not survive even the rational basis test. To do so, it would have to be shown that an effective prohibition on the use of firearms for self-defense is a reasonable restriction on the right to keep and bear arms. Such a severe law is not reasonable, because it leaves peaceful citizens defenseless against violent criminals. And neither is it a mere restriction of the right to keep and bear arms; it is outright repeal. If the rational basis test can be used to uphold the repeal of a constitutionally protected right, then neither that test nor the Bill of Rights have any meaning. Chemerinsky’s logic would allow the District to abolish private property so long as it had a “rational basis” for doing so.

But

“I’m for free enterprise, but –” You can hear it coming. “I’m against all these government giveaway programs, but –” It’s a common and frustrating experience for a libertarian, hearing a ringing declaration of principle followed by a qualification that the speaker doesn’t have any intention of giving up his own subsidy, regulation, tariff, or pet project.

Years ago, when I was raising money for a free-market business group, I remember one of those letters: “I agree with everything you say. Government is too big. Subsidies and regulation are impeding the operation of our free enterprise system. But the Hawaiian sugar industry is unique.” A friend told me once that he’d persuaded his father, a dentist, to become a consistent libertarian–except on licensing for dentists. What about licensing for brain surgeons? I asked. No, my friend said, I think he’s OK with letting the free market work there.

And now NPR has brought us the latest example. On the way home, my mind wandered as “All Things Considered” reported on a biodiesel refinery in Washington state. And then I heard a familiar opening line from the tech millionaire who is now the CEO of Imperium Renewables, which built the refinery.

I’m a pretty conservative guy, generally. I’ve voted Republican my whole entire life. And I’m very skeptical of the government’s role in any kind of market.

Wait for it, wait for it – you just know there’s a “but” coming.

But, in this case, there’s no other way to do it but with government support and mandates.

Turns out biodiesel is profitable with a federal tax subsidy of up to a dollar a gallon, and with the anticipation of restrictions on greenhouse gases. So a guy who’s normally “very skeptical of the government’s role” supports subsidies in this case because there’s “no other way to do it.” But that’s the whole point of markets and prices–to tell us what economic endeavors make sense. If Hawaiian sugar, or South Carolina textiles, or biodiesel fuel isn’t economically viable without subsidies, then that means it’s not the best use of our limited resources.

One of the values of a political philosophy–sometimes dismissed as “ideology” or “dogma”–is that it gives us a rule, a set of principles, for deciding such questions. We don’t have the time to look at all the data and decide what we think about every issue, and we’re certainly all subject to personal biases on the issues that touch us. There are lots of speakers I’d personally like to shut up, but if I remember that I do believe in the First Amendment, I realize I have to allow even offensive speech. I may want Amtrak to run fast trains between Washington and New York, or I may want to keep my own factory in business. But if I remember that the free-market economy produces the best results for all of us, then I will accept the outcomes of the market process.

People should think about the benefits of the whole libertarian system–free markets, free speech, freedom of religion, constitutional limits on government–whenever they’re tempted to say “I’m for freedom, but–”.

Cock-fighting and Freedom

It’s not often that you can point to a stirring article about American liberty by a Weekly Standard editor. But Chris Caldwell’s piece in the Financial Times on cock-fighting is a fine read. Yes, cock-fighting. Presidential candidate Bill Richardson doesn’t want the legality of cock-fighting in New Mexico to burden his candidacy as he travels the length and breadth of this great land. So rather than defend New Mexico as the last bastion of American freedom, he chose to sign a law banning it to help his campaign.

Caldwell notes sadly that even the defenders of the practice hardly mentioned liberty. Instead, they mentioned the economic benefits of tourism and the alleged anti-Hispanic bias of the drive to ban a sport popular with Hispanics. The better argument, he thought, would have been liberty: some people want to attend cock-fights, and Americans have been doing so for centuries, so why should “reformers” be able to take a small pleasure away from others? Caldwell deplores the decline of the general presumption of liberty:

It used to be, under the US system, that one could do anything that was not expressly forbidden. Now one is forbidden to do anything one cannot make an explicit case for. The burden of proof has shifted.

It’s especially sad that Bill Richardson, who is not so bad on fiscal issues and is a supporter of medical marijuana, felt that he had to take people’s freedom away for his own political gain.

In Search of the Libertarian Democrat

Virginia Postrel writes today of the importance of empiricism to advancing liberty. She also mentions the possibility of persuading Democrats to become more sympathetic to the struggle for limited government.

I decided to assess the likelihood of a liberal-libertarian coalition empirically by looking at Democratic replies to questions about government spending. How open are Democrats to limiting government? These responses came from the 2004 pre-election survey conducted by American National Election Studies.

ANES posed the following choice: “Some people think the government should provide fewer services even in areas such as health and education in order to reduce spending. Suppose these people are at one end of a scale, at point 1. Other people feel it is important for the government to provide many more services even if it means an increase in spending. Suppose these people are at the other end, at point 7.” People could also choose 2 through 6, 4 being the median choice.

About 9 percent of Democrats responded on the low or limited government end of the scale. 70 percent of Democrats responded 5 or more; almost one in four answered 7 to the question, the response farthest from the limited government answer. Not much evidence of a desire for limited government.

ANES also asked: “Some people feel the government in Washington should see to it that every person has a job and a good standard of living. Suppose these people are at one end of a scale, at point 1. Others think the government should just let each person get ahead on their own. Suppose these people are at the other end, at point 7. And, of course, some other people have opinions somewhere in between, at points 2, 3, 4, 5, or 6.” In other words, the lower your score, the more you favor a nanny state.

Slightly less than half the Democrats gave a 1 to 3 response to the question. One in five Democrats gave the most extreme response favoring a nanny state. Three out of four Democrats gave a median response or higher.

ANES also asked about whether spending should be increased in various ways. Here are the percentages of Democratic respondents who favored increased spending on:

Aid to the poor 73.9%

Social Security 72.1%

Public Schools 87.3%

Science and Technology 57.3%

Dealing with Crime 68.4%

Child care 72.4%

Border security, illegal immigration  57.3%

In a few cases, a majority of Democrats did not favor increased spending. Here are the percentages of Democrats who favored increased spending on:

Highways 35.9%

Welfare programs 28.7%

War on terrorism 38.3%

Foreign aid 14.1%

However, on each of these issues, the percentage of Democrats who favored either increasing spending or keeping it the same was

Highways 90%

Welfare programs 75%

War on terrorism 71.7%

Foreign Aid 60.1%

No Democratic majority could be found that favored decreasing spending on any issue broached by the ANES survey.

Postrel notes, “a liberal-libertarian coalition may sound crazy when you look at the Democratic Congress, the 2008 presidential field, or the Democrats’ reflexive demonization of pharmaceutical companies.” But this data makes it clear that the Congress and the presidential candidates reflect the attitudes of Democrats more generally.

Crazy is not the correct word for the liberal-libertarian gambit. It is not like believing the Cato Institute building is made of cheese. But a political coalition requires some agreement in basic outlook about what government should do (or not do).

To believe in the liberal-libertarian proposal, you have to believe that huge, unprecedented numbers of Democrats are going to change their minds about increasing government spending or that libertarians are going to stop caring about increases in government spending.

I am sure the former will not happen.

Euphemisms for Theft

English is a rich language. One reason is that we don’t have an equivalent of l’Academie Française, which tries (and fails) to prevent loan words, neologisms, and deviations from prior rules of grammar. 

Another reason is that political processes keep generating euphemisms designed to disguise horrid behavior. (“Did I say death camps? I meant happy camps.”) 

To honor that tradition, I offer this list of euphemisms for theft:

Email me mcannon [at] cato [dot] org (here) with additional candidates.

Will McCain Talk Straight?

John McCain has once again boarded the Straight Talk Express. You might recall that his bus trips and cozy conversations with the media brought victory in the New Hampshire primary in 2000, though not ultimately the Republican nomination for president that year. The bus symbolized that McCain was “a different kind of politician” and all the other cliches that have come to denote his public persona.

McCain’s back on the bus because his campaign for the GOP nomination has stumbled. Rudolph Guiliani leads in the polls, and McCain appears on the cusp of a death spiral. Politicians have long appealed to popular sentiment to attain power. The Straight Talk Express continues that tradition.

But how straight will McCain’s talk be? In 2000 in New Hampshire, he talked mostly about campaign finance restrictions. McCain’s current political problem comes in part from that “straight talk.” Republican primary voters don’t much support campaign finance restrictions. They understand correctly that the dominant purpose of such restrictions has long been to limit the speech and political activity of anyone who is not a liberal, a group that includes almost all of the Republican primary electorate.

So will McCain talk straight at his moment of greatest need? Will we once again hear of the corruption brought to politics by Big Money? Will he speak straight and forcefully against the Swift Boat ads in 2004?

This is a crucial moment for Senator McCain. He must talk incessantly about his support for restricting political speech. If he does not, Republican primary voters might conclude that McCain is just another ambitious, opportunistic politician who will say anything to gain power equal to desire.

And we know that is incorrect in his case, don’t we? After all, he talks straight.

Ohio Governor Seeks to Kill Voucher Program

In his State of the State address on Wednesday, Ohio governor Ted Strickland called for the elimination of the statewide voucher program aimed at students in public schools deemed to be failing. He is also seeking to prevent the creation of any new charter schools and to outlaw for-profit firms from managing charter schools.

He went on to say that no new grocery stores should be opened in Ohio, that grocery stores should not be permitted to operate for profit, and that the state would be withdrawing from the federal foodstamps program.

Okay, I made that last paragraph up. But the only reason you knew that is because we are all familiar with the advantages of a competitive market for grocery stores, and with the fact that government can subsidize access to food without actually running its own supermarkets.

Researchers who study school governance structures in an international and historical perspective know that the same things that are true of the grocery business are also true of the education sector. Members of the public who frequent Cato’s website or read our publications know this as well.

Tragically, at least one very influential man from Ohio is wholly ignorant of these facts.

This is yet another argument for federalism and against national standards in education. If Ohioans choose to elect leaders who will unravel the progress they have made toward parental choice and competition between schools, their state will lose a competitive advantage it currently enjoys in attracting businesses and families. Other states that pursue greater freedom in education will attract more businesses and families. Eventually, states will have to stop operating education as a monopoly jobs program and start letting families decide – or gradually become economic and cultural backwaters.

But if we nationalize education – as so many Republicans and Democrats currently wish to do – a single backward administration or Congress could ruin education for the entire nation.

Folks who still support national standards after thinking about that should re-read the part of Jared Diamond’s book “Guns, Germs, and Steel” that deals with medieval Chinese naval capacity and technology, and the reasons these fell behind achievements in the West.