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Cato Dispatch for March 5, 2010

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(Links to outside sources were active as of the date of this dispatch; however, not all news sources maintain links to current stories indefinitely. Some links also may require registration.)

Supreme Court Protects Gun Rights, Fails to Restore Greater Freedom

The Supreme Court heard oral argument in McDonald v. Chicago this week — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the Court did not seem inclined to adopt arguments that the Privileges or Immunities Clause was the way to go.

First, some background: The Constitution limits how much the federal government can infringe upon the rights of citizens. The Fourteenth Amendment extends this protection against actions of state governments, in part, by forbidding them from passing "any law which shall abridge the privileges or immunities of citizens of the United States." This clause was virtually eviscerated in the infamous Slaughterhouse case of 1873. Although it is unlikely that the Court will extend gun rights using the Privileges or Immunities Clause, Cato Senior Fellow Ilya Shapiro argues that it is the most appropriate route to restoring the right to bear arms to the people of Chicago:

The Privileges or Immunities Clause, far from giving judges free rein to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now—and as it seems will be the case after McDonald—many of our most cherished rights are constitutionally protected only to the extent that judges are willing to label them as sufficiently "fundamental." That interpretive method fosters an unprincipled jurisprudence and hurts the rule of law…. The right to keep and bear arms appears to be well on its way to being restored for all citizens across the country—and that is a good thing. The fight to restore the Fourteenth Amendment, however, to its proper role as principled guarantor of our freedoms against state oppression, goes on.

Timothy Sandefur of the Pacific Legal Foundation explains the case further in a recent Cato Daily Podcast.

Obama Ramming through Health Care Overhaul

Despite polls that show that most Americans oppose the Democrats' health care plan, and lagging support for the bill in both houses of Congress, President Obama has made it clear that he will attempt to use "reconciliation," a parliamentary procedure that only requires a simple majority in the Senate, to pass the health care bill.

Cato Senior Fellow Michael D. Tanner explains how reconciliation works, and the risk involved:

For those not versed in the arcane rules of the U.S. Senate, reconciliation is not what a divorced couple attempts when they visit Dr. Phil. It is a mechanism for avoiding filibusters on certain budgetary issues. If Democrats can find a way to apply it to health care reform, they could pass a bill with just 51 votes, negating the election of Massachusetts Senator Scott Brown and the loss of the 60-seat supermajority….Given the difficulties, therefore, no one expects the Democrats to try to pass a whole new bill. Instead, the House of Representatives would pass the already approved Senate health care bill without any changes. However, because the Senate bill is unacceptable to both liberal and moderate House members, they would simultaneously pass a separate bill under reconciliation procedures that would make changes demanded by the House.

President Obama has said that he is willing to compromise with Republicans to get the bill through, but as Michael Cannon, Cato director of health policy studies, explains, "Dropping a few Republican ideas into a government takeover of health care is like sterilizing the needle before a lethal injection: a nice thought, but the ultimate outcome is the same…. This is not bipartisanship.  President Obama is creating the illusion of bipartisanship while taking the most partisan route possible: forcing his legislation through Congress via reconciliation."

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Chris Moody, editor, cmoody@cato.org