Cato Weekly Dispatch

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Thu, 14 Oct 2010 00:00:00 -0400

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Thu, 14 Oct 2010 00:00:00 -0400

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Thu, 14 Oct 2010 00:00:00 -0400

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The Era of Permanent Bailouts

Fri, 23 Apr 2010 00:00:00 -0400

The Senate is poised to open debate on a Democratic reform package that would set up new regulatory oversight of the financial sector. Writing in the New York Post, Cato scholar Mark A. Calabria argues that the bill ignores the root causes of the 2008 crisis: "The central flaw is that Dodd's bill continues bailouts as federal policy, despite his claim that he's ending 'too big to fail.' ...It wouldn't bring stability to our financial system, but further erode market discipline — while asking us to put all our faith in the same regulators who have failed repeatedly."

"Under the bill, debt holders can still be, and will likely be, bailed out," writes Calabria. "A bill that essentially says, "No more bailouts -- except under conditions A, B, C and D,' is not a bill that ends bailouts."

The bill merely gives the government more control to pick winners and losers in the marketplace. Writes Calabria, "To function properly, capital markets need certainty about how the government will respond in crisis situations. The Dodd bill doesn't provide that clarity: Instead, it massively delegates power -- allowing regulators to decide who gets rescued and who doesn't." In short, Dodd's bill makes bailouts into permanent policy.

In the Wall Street Journal, Cato scholar Gerald O'Driscoll warns that Dodd's financial regulation will increase cases of "crony capitalism":

If we want to restore our economic freedom and recover the wonderfully productive free market, we must restore truth-telling on markets. That means the end to price-distorting subsidies, which include artificially low interest rates. No one admits to preferring crony capitalism, but an expansive regulatory state undergirds it in practice.

Piling on more rules and statutes will not produce something different than it has in the past. Reliance on affirmative principles of truth-telling in accounting statements and a duty of care would be preferable. Deregulation is not some kind of libertarian mantra but an absolute necessity if we are to exit crony capitalism.

A Libertarian Response to Earth Day

Fri, 23 Apr 2010 00:00:00 -0400

Thursday marked the 40th anniversary of Earth Day, a time designated to highlight and discuss ways to work toward a cleaner planet. While many use the time to advocate stringent government regulations, Cato scholars have shown repeatedly that markets, property rights and prosperity work to achieve the same ends. Cato's energy and environment research promotes policies that would help protect the environment without sacrificing economic liberty.

As Cato scholar Jerry Taylor explains, we have capitalism to thank for the clean air we breathe and the fresh water we drink:

It's businessmen -- not bureaucrats or environmental activists -- who deserve most of the credit for the environmental gains over the past century and who represent the best hope for a Greener tomorrow. … Indeed, we wouldn't even have environmentalists in our midst were it not for capitalism. Environmental amenities, after all, are luxury goods. America -- like much of the Third World today -- had no environmental movement to speak of until living standards rose sufficiently so that we could turn our attention from simply providing for food, shelter, and a reasonable education to higher "quality of life" issues. The richer you are, the more likely you are to be an environmentalist. And people wouldn't be rich without capitalism.

…This is not to say that government regulations haven't had an impact or aren't occasionally worthwhile. It is to say, however, that free markets are an ally -- not an enemy -- of Mother Earth. The Left, accordingly, has no special claim on Earth Day.

Cato Quick Hits

Fri, 23 Apr 2010 00:00:00 -0400

Really, Senate Commerce Committee? Do you really think Hollywood actress Sigourney Weaver has important information you need to know?
Clear and simple: It is unconstitutional for the federal government to force people to buy a private product.
Who are these centrist, independent-minded voters some say will be crucial in the 2010 elections? They're not conservative. Many of them may be libertarian — fiscally conservative but socially liberal or tolerant.
Was there ever really a "libertarian golden age?"

Exiled Iranian Journalist Receives 2010 Milton Friedman Prize for Advancing Liberty

Fri, 16 Apr 2010 00:00:00 -0400

Akbar Ganji, an Iranian writer and journalist who spent six years in a Tehran prison for advocating a secular democracy and exposing government involvement in the assassination of individuals who opposed Iran's theocratic regime, has been named the 2010 winner of the Cato Institute's Milton Friedman Prize for Advancing Liberty.

Ganji may be best known for a 1999 series of articles investigating the Chain Murders of Iran, which left five dissident intellectuals dead. Later published in the book, The Dungeon of Ghosts, his articles tied the killings to senior clerics and other officials in the Iran government, including former President Ali Akbar Hashemi Rafsanjani. Ganji was arrested for spreading propaganda against the Islamic system and "damaging national security." He was eventually sentenced to six years in prison, much of it spent in solitary confinement.

He was released from prison in March of 2006 and left Iran shortly thereafter. Many countries around the world offered him honorary citizenship, and he traveled extensively, giving talks promoting democracy in Iran and exposing major human rights abuses by the Iranian government. Despite his battle with Iran's theocracy, Ganji remains steadfastly opposed to military action by the United States in both Iran and Iraq, saying "you cannot bring democracy to a country by attacking it."

Established in 2002 and presented every two years, the Milton Friedman Prize for Advancing Liberty is the leading international award for significant contributions to advancing individual liberty. The Friedman Prize biennial dinner and award presentation will be held at the Hilton Washington Hotel in Washington, D.C, on May 13, 2010. Make your reservation now.

Many Unhappy Returns

Fri, 16 Apr 2010 00:00:00 -0400

Over the past week, those Americans frantically filling out their returns have been reminded of the tax system's increasing complexity and inefficiency. But it is also important to remember that the root cause of this woe is out-of-control government spending. And what's worse, all the spending planned by the Obama administration will result in added pressure for tax increases. Cato Institute scholars have long been pushing for cuts in spending and a renewed commitment to fiscal responsibility

At DownsizingGovernment.org, Cato scholars have outlined detailed plans for reducing major departments of the federal government. Chris Edwards has appeared on the Glenn Beck Program each night this week to discuss ways to downsize the president's budget, and will join him again tonight on Fox News at 5:00 PM EST.

Cato Budget Analyst Tad DeHaven writes:

Today is that unofficial American holiday where we mourn the loss of a year's worth of productive private resources to our bloated federal government. And it's not just the actual dollars paid to Uncle Sam — it's also the economic loss due to all the time and money wasted trying to comply with an increasingly complex tax code. …But on this Tax Day we shouldn't just mourn what we lost to Uncle Sam, nor should we celebrate what the federal government allowed us to gain from others. The federal budget is on an unsustainable trajectory that, if not reined in, will mean reduced living standards for future generations — whether they are effective taxpayers or not.

Beyond the cost of taxes, the tax system is so complicated that Americans pay billions of dollars each year just to file the documents, a cost that could be eliminated with a flat tax.

Justice Stevens to Retire

Fri, 16 Apr 2010 00:00:00 -0400

Justice John Paul Stevens announced his retirement from the Supreme Court last week after 34 years of service. Justice Stevens will step down in June at the end of the Court's current term. Cato scholar Ilya Shapiro comments on his legacy: "Justice Stevens is to be commended for his record of service in a variety of positions in the public and private sector. Unfortunately, the jurisprudential legacy he leaves behind is much more checkered than his personal integrity and professionalism."

President Obama is expected to nominate Stevens' replacement this summer, which could lead to a showdown in Congress. Writes Shapiro:

Each of the candidates on the "short list" to replace Stevens — most notably Elana Kagan, Diane Wood, and Merrick Garland — has pluses and minuses in terms of their approach to the law (not to mention politically). But in any case this summer's confirmation hearings will again show the American people the different approaches to the judicial role. At a time when the constitutional interpretation looms large in an electoral context — not least with the growing discomfort over the massive new health reform — voters will be able to see the dangerous consequences of following the errant jurisprudential path that Justice Stevens blazed so honorably.

Cato Legal Scholar Roger Pilon has more on Stevens in Thursday's Cato Daily Podcast.

New Nuclear Strategy for U.S.

Fri, 09 Apr 2010 00:00:00 -0400

In advance of the Global Summit on Nuclear Security next week, President Obama on Tuesday announced a slight shift in U.S. nuclear weapons policy that essentially split the difference between conservatives who favor an expanded role for nuclear weapons and liberals who anticipate their complete elimination. Cato scholar Christopher A. Preble says that overall the Nuclear Posture Review "signals more continuity than change," but warns, "Unfortunately, it fails to set the stage for dramatic and necessary changes to a bloated and outdated force structure because it reaffirms the U.S. commitment to other countries that imposes a huge burden on our military and on U.S. taxpayers."

In the December 2009 issue of Cato's Nuclear Proliferation Update, Preble discussed the cost of our nuclear program, and how it is the least transparent feature of the nation's massive budget:

In the most comprehensive study of nuclear weapons spending, [researchers] concluded that U.S. taxpayers spent at least $52.8 billion in fiscal year 2008—a reasonable floor based solely on information in the public domain. The actual top–line budget, which includes classified and intelligence-related activities, is surely higher—and likely much higher. ...Nuclear weapons–related spending might be warranted if the money was likely to advance American security, and do so at a reasonable cost. Programmatic reforms, beginning with a full and public accounting of all spending, are essential to making this a reality.

Preble discussed the reduction of the nuclear arsenal in a recent Cato Daily Podcast.

U.S. Court of Appeals: The FCC Does Not Have Authority to Regulate the Internet

Fri, 09 Apr 2010 00:00:00 -0400

A federal court ruled this week that the Federal Communications Commission does not have the power to control how private Internet providers manage their online networks. Says Cato scholar Jim Harper, "Slow-moving, technologically unsophisticated bureaucrats do not know better than consumers and technologists how to run the Internet. The FCC's 'net neutrality' hopes are nothing more than public utility regulation for broadband."

"Network neutrality" activists have long pushed for legislation that would give the government massive regulatory powers over the Internet. Now that the FCC no longer has the power, advocates will look to Congress. Harper explains why that would be a major step in the wrong direction:

The Internet is far more durable than regulators and advocates imagine. And regulators are far less capable of neutrally arbitrating what's in the public interest than most people realize. The FCC doesn't have authority to regulate the Internet. Congress and the president shouldn't give it that authority.

To understand "network neutrality," read Timothy B. Lee's definitive paper, "The Durable Internet: Preserving Network Neutrality without Regulation," which explains how the market can continue to provide the most promising future for the Web.

Cato Quick Hits

Fri, 09 Apr 2010 00:00:00 -0400

David Boaz on libertarian nostalgia: There's no such thing as a golden age of lost liberty. "If you had to choose, would you rather live in a country with a department of labor and even an income tax or a Dred Scott decision and a Fugitive Slave Act?"
Obama's top economic adviser suggests that it's time for America to adopt a VAT, or value-added tax. Daniel J. Mitchell explains why imposing a VAT would pretty well finish the transformation of our country into a European-style slow-growth nation.
Was the Iraq War worth it? Malou Innocent: "Don't believe the hype. The Iraq war remains a mistake of mammoth proportions. And Iraq's election represents a pyrrhic victory, as the economic, political, and moral costs of the occupation far outweigh any benefits."
This weekend on Stossel: David Boaz, P.J. O'Rourke, and Jeffrey Miron discuss "What's a Libertarian?" Saturday at 7pm & 11pm ET and Sunday at 10pm ET on Fox Business Network.

Is Obamacare Constitutional?

Fri, 02 Apr 2010 00:00:00 -0400

Legal scholars argue that several of the health care overhaul's provisions run afoul of the Constitution. As of this writing, more than a dozen states have filed suits against the new law. But do they have a winning case? Writing in The Hill and Politico, Cato legal scholars Ilya Shapiro and Roger Pilon discuss why Obamacare is unconstitutional.

Ilya Shapiro, senior fellow and editor of the Cato Supreme Court Review:

The strongest and most important legal argument attacks the constitutionality of the individual mandate to buy a certain approved health insurance plan. Never before has the federal government-or any other-tried to force Americans to buy a particular good or service. Never before has it said that every man, woman, and child alive has to purchase a particular product, on penalty of civil or criminal sanction or forfeiture. And never before have courts had to consider such a breathtaking assertion of raw power — not even during the height of the New Deal, when the Supreme Court ratified Congress' regulation of what people grew in their backyards on the awkward theory that such behavior affected interstate commerce.

The individual health care mandate is an even greater expansion of congressional power under the Commerce Clause. And it cannot be justified under the Necessary and Proper or General Welfare Clauses either, because these provisions guide the exercise of Congress' enumerated powers without adding to them. In short, if the challenges to this health care "reform" fail, nobody will ever be able to claim plausibly that the Constitution limits federal power.

Roger Pilon, vice president for legal affairs:

Do the 13 state attorneys general have a case against Obamacare? Absolutely. It will be an uphill battle, because modern "constitutional law" is so far removed from the Constitution itself, but a win is not impossible. There are three main arguments. (1) Under the Constitution, as properly interpreted, Congress has no power to enact such a plan. (2) The plan conscripts state governments into carrying out and paying for federal mandates. And (3) the individual mandate amounts to an unlawful capitation or direct tax.

Let's be clear, however. This suit was brought because the 13 states (and I predict more will follow) see the handwriting on the wall. Obamacare will mark the effective end of federalism as we've known it, will bankrupt the states, and, because of that — here's the clincher — is but a stalking horse for federal single-payer health care in America. This suit will keep the issue alive until November, when the American people will have a chance to weigh in.

Furthermore, Shapiro has made a direct challenge to debate whether Obamacare is constitutional "anytime, anywhere."

We'll see if there are any takers. For more, read Senior Fellow Randy Barnett's very helpful guide to the possible legal challenges to the health-care bill in The Washington Post.

Obama Proposes Expansion of Offshore Drilling

Fri, 02 Apr 2010 00:00:00 -0400

President Obama on Wednesday announced a plan to allow oil and natural gas exploration off U.S. coastlines in the Atlantic Ocean and Gulf of Mexico. Cato Senior Fellow Jerry Taylor responds: "President Obama should be credited — albeit cautiously — for his announcement yesterday that he will open some U.S. coastal waters to offshore oil drilling. ...But in an absolutely perfect world, the government would not be in the business of allocating scarce resources — in this case, the offshore oil fields — to competing user groups. The market would play that role."

Writing in the Los Angeles Times in 2008, Taylor explained why drilling is a risk worth taking:

The U.S. Energy Information Administration (EIA) — an analytic arm of the U.S. Department of Energy — reported last year that removing all offshore drilling restrictions would liberate about 18 billion barrels of petroleum at a rate of about 200,000 barrels a day. … You might, of course, want to argue that the environmental risks are greater than the energy rewards. For the sake of argument, let's assume that the EIA is right and 18 billion barrels of oil are at stake. And let's further assume that the oil could be sold for an average price of $100 a barrel. How likely is it that the cost of the environmental damages associated with this incremental increase in oil production would exceed $1.8 trillion? If it did not, then the environmental risks were worth taking.

Cato Quick Hits

Fri, 02 Apr 2010 00:00:00 -0400

President Obama declared passage of a major student-aid reform law this week. Will it help? Cato education expert Neal McCluskey calls it a mixed bag.
Should Congress pursue a constitutional amendment that would limit federal spending to one-fifth of the nation's GDP?
If you thought last week was a bad time to be a Republican, try the next century: Gene Healy discusses the fact that most demographic trends show Democratic constituencies growing and traditional Republican ones shrinking.
Randal O'Toole: The case against rail transit.
Next Thursday: Cato scholars P. J. O'Rourke, David Boaz, and Jeff Miron discuss "What's a Libertarian?" with John Stossel on Fox Business Network at 8 pm.

How the Health Care Overhaul Will Affect You

Fri, 26 Mar 2010 00:00:00 -0400

With a final stroke of the president's pen, the health care bill was signed into law this week. The impact of the new law will be far reaching over the course of the next few years, and it is important to understand how it will affect your life immediately, and as more provisions of the legislation are incorporated over the next decade.

Will we wake up tomorrow to a whole new health care system? Not really. In fact, most Americans will notice very little change, at least in the short term. From Cato Senior Fellow Michael D. Tanner, here's a list of ways the new law will affect you:

Anyone expecting their insurance premiums to go down is going to be sorely disappointed. The Congressional Budget Office predicts that, despite passage of this bill, insurance premiums will double in the next few years. Worse, for the millions of Americans who get their insurance through the individual market, rather than from an employer, this bill will raise premiums by 10-13 percent more.
It is predicted that the bill will eventually result in some 32 million more Americans becoming insured (still leaving some 21 million uninsured). But that wouldn't be achieved until at least 2019. For most people who are uninsured today, they will still be uninsured tomorrow.
Parents will be able to keep their children on their family insurance plan until those children reach age 26. Of course, that will not be free. Parents who do so can expect to pay higher premiums.
Insurance companies will no longer be able to deny coverage to children with pre-existing conditions. A ban on pre-existing condition restrictions for adults doesn't start until 2014.
Next year, some small businesses will be eligible for tax credits to offset some of the costs of providing insurance for their employees. Starting in 2012, Medicare payroll taxes will increase by 0.9 percent on individuals earning more than $200,000 per year. There will also be a new 3.8 percent tax imposed on investment income and capital gains. More than a dozen other new or increased taxes will also be coming on board.
The biggest changes start in 2014. For example, that's when the individual and employer mandates start. Every individual will have to have a government-approved health insurance plan or pay a penalty equal to one percent of his or her income.
The last component of the bill to kick in is the tax on so-called "Cadillac" insurance plans. Beginning in 2018, insurance plans with a value of $10,200 for an individual or $27,500 for a household will be subject to a 40 percent excise tax.

Cato Quick Hits

Fri, 26 Mar 2010 00:00:00 -0400

Too bad no one saw this coming: Social Security is now in the red.
As the health care overhaul crosses home plate, global warming legislation steps up to bat.
Idea of the day: Repeal the 16th Amendment, which gives Congress the power to lay and collect taxes. Replace it with an amendment that requires each state to remit to the federal government a certain percent of its tax revenue.
Will claims that the health care overhaul is unconstitutional get anywhere? Here is your guide to the possible legal challenges to the new law.
Estimates of the health care overhaul's real cost over 10 years run as high as $3.5 trillion, including $600 billion in new taxes from the start.

Vote Coming on Health Care Overhaul

Fri, 19 Mar 2010 00:00:00 -0400

The House is expected to vote this Sunday on the health care bill already passed by the Senate. Even President Obama has conceded that his attempt to overhaul health care has been "an ugly process." Argues Cato scholar Michael F. Cannon: "Count on things getting even uglier when the final vote occurs this weekend. In the pressure cooker of a final vote, the president and his allies will add even more bribes and arm-twisting to 'persuade' members to vote for a government takeover of health care."

It has been a long process, with a lot of misinformation over the course of the debate. Cannon brings seven of the biggest whoppers about the health care overhaul to light in an article on AOL.com, including:

Myth: This isn't a government takeover of health care.

This legislation would force all Americans to purchase health insurance coverage. Government would control what kind of insurance you purchase, where you purchase it, how much you pay and what kind of medical care you receive. Our health care sector would be "private" in name only. Once government controls those decisions, there will be nothing left to socialize. Make no mistake — this is a vote on socialized medicine.

Myth: This legislation would stop abusive insurance practices.

The Obama plan would encourage abusive insurance practices. Research by Obama adviser David Cutler shows that the plan's price controls would force insurers who provide quality care for the sick into bankruptcy. Insurers would therefore use countless and covert means to deny care and avoid, mistreat and dump the sick. Along the way, the legislation would shower private insurance companies with half a trillion dollars in government subsidies.

Myth: The legislation would contain health care costs.

The Obama plan would increase health care costs for the simple reason that it would put millions more patients, plus doctors and insurers, in a position where they are spending the taxpayers' money. That never produces frugality. Its command-and-control approaches to cost containment have failed over and over in Medicare and Medicaid because they don't change the incentives that encourage cost growth. The only provision that would change incentives is the president's proposed tax on the sick and others with high-cost health plans. But he appears ready to abandon that, anyway.

Seven Years in Iraq

Fri, 19 Mar 2010 00:00:00 -0400

Today marks the seventh anniversary of the Iraq war. In a panel this week at Cato on conservatism and war, U.S. Reps. Dana Rohrabacher (R-Calif.), Tom McClintock (R-Calif.), and John Duncan (R-Tenn.) suggested that the vast majority of GOP members of Congress now think it was wrong for the U.S. to invade Iraq in 2003. Cato scholars have long opposed the war and have argued that an expeditious military withdrawal from Iraq and a handover of security responsibilities to the Iraqi people is in America's strategic interest.

In a 2008 Policy Analysis, foreign policy analysts Benjamin H. Friedman, Harvey Sapolsky and Christopher Preble summed up the lessons learned from America's military involvement in Iraq:

What Iraq demonstrates is a need for a new national security strategy, not better tactics and tools to serve the current one. By insisting that Iraq was ours to remake were it not for the Bush administration's mismanagement, we ignore the limits on our power that the war exposes and in the process risk repeating our mistake... The military gives us the power to conquer foreign countries, but not the power to run them. Because there are few good reasons to take on missions meant to resuscitate failed governments, terrorism notwithstanding, the most important lesson from the war in Iraq should be a newfound appreciation for the limits of our power.

Cato Quick Hits

Fri, 19 Mar 2010 00:00:00 -0400

Exclusive Podcast: Joe Scarborough takes on neo-conservatives, Obama's foreign policy record since taking office, and why the United States is still at war.
A little lesson on how government works. (As opposed to how it's supposed to work.)
There has been talk that House Democrats are planning to "deem" the health care bill into law without calling for a vote. If you're not sure how that process works, read this.
More questions for any thoughtful supporter of the health care overhaul.
If the House enacts the Senate health care bill without voting on it, are we under obligation to obey it? The answer may be no.

Coming Down to the Wire on Health Care?

Fri, 12 Mar 2010 00:00:00 -0500

After a long year of debating the best way to reform America's health care system, sources in Washington say that it could all be over in a matter of days. Reuters reports, "The House of Representatives Budget Committee on Monday will consider a reconciliation bill that Democrats hope clears the way for final congressional approval of an overhaul of U.S. healthcare. ...President Barack Obama has postponed a trip to Asia so that he could stay in Washington and help fellow Democrats get healthcare across the finish line."

Even after the White House went to great lengths to ram the bill through Congress, and added a few empty compromises within the legislation, the bill still faces a major opponent: the people. Recent polls still show strong opposition to the bill, and with an Easter recess approaching, members of Congress will have to face their constituents back home.

Plus, questions still loom about the actual effectiveness of the bill to reduce costs. Michael Cannon, Cato director of health policy studies, explains why the bill will actually increase health care spending:

The Congressional Budget Office said the "federal budgetary commitment to health care" would rise by $210 billion between 2010 and 2019 under the Senate bill. Then, after 2019, it would fall from that higher level. And it could fall quite a bit before returning to its current level. Even President Obama admits, "You can't structure a bill where suddenly 30 million people have coverage and it costs nothing."

For a plan that will actually reduce costs, read Cato Senior Fellow Michael Tanner's piece on the case for high-deductible health insurance.

Bush's Third Term? PATRIOT Act Extended without Reform

Fri, 12 Mar 2010 00:00:00 -0500

The Associated Press reports that President Obama "has signed a one-year extension of several provisions in the nation's main counterterrorism law, the Patriot Act." According to the report, the move will:

Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
Allow court-approved seizure of records and property in anti-terrorism operations.
Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.

Cato Research Fellow Julian Sanchez writes:

A Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration -- among them, more stringent limits on the national security letters (NSLs) Obama had once decried.

...The only silver lining for civil libertarians is that the expiring Patriot provisions have only been reauthorized for one year, meaning Congress will have to take up these issues again relatively soon. The question, given the muted public reaction to the abuses that have already been disclosed, is why we should hope legislators will be any more willing to expend political capital resisting the intelligence community's demands a year from now. The "choice between the liberties we cherish and the security we provide" may be a false one, but in the current political climate, it appears to be an easy one as well.

For recommendations on how to reform the PATRIOT Act, read the chapter on civil liberties and terrorism in the Cato Handbook for Policymakers.

Cato Quick Hits

Fri, 12 Mar 2010 00:00:00 -0500

Greece, here we come...Congressional Budget Office estimates budget deficits will average nearly $1 trillion per year for the next decade.
Daniel Griswold in the Washington Post: "On trade, as on so much else, the populists have it wrong again. Free trade and globalization are great blessings to families across America."
Supreme Court Justice Scalia holds himself out as the patron saint of originalism, but is he abandoning the idea that judges should interpret the Constitution according to its original public meaning?
Michael Tanner: "In case you lost count, President Obama's remarks on Wednesday were his 35th major speech on health care reform. The news: this time he really, really, really means it when he says it's time to act. As for the speech itself, it was virtually indistinguishable from any of the previous 34."

Supreme Court Protects Gun Rights, Fails to Restore Greater Freedom

Fri, 05 Mar 2010 00:00:00 -0500

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.