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Archive for February, 2014


2nd and 5th Amendments

The 5th Amendment to the Constitution does not say what most people think it says. They think that it says that the government can take private property if there is just compensation. Instead, it says that there must be just compensation if the government takes private property. Well, courts have interpreted this to mean that the right to take property, eminent domain, is implied. Otherwise, how else could the government find itself justly compensating for taking property.

The 5th Amendment is as follows with our underlining of relevant parts: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

While there are several points to be made here regarding due process, public use, and just compensation, I want to focus today on the backwards language and interpretations of the right the government has to take property. Again, the amendment does not explicitly state that the government has the right to take property. That right is implied.

Now let’s turn our attention to the 2nd Amendment. What does it say about militias? Does it explicitly say that citizens have the right to form militias . . . as long as they are well regulated? I don’t think so. But just as the right of eminent domain is implied by the 5th Amendment, the right to form militias is implied by the 2nd. Lets review the 2nd Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Well, it doesn’t explicitly say that the right of the people to form militias shall not be infringed. However, this right is implied by the language of the amendment in the same way as the right of eminent domain is implied by the 5th. That is, the word “militia” is mentioned in such a way as one must reasonably believe that the right to bear arms in a militia implies that militias can exist. Yet, it is reasonable to argue about the meaning of the words “well regulated.” Nevertheless, it is not reasonable to exclude the possibility of militias altogether.

But the government does not like competition. It doesn’t want the private sector to compete directly with the USPS, hence you can’t touch somebody else’s mailbox . . .  unless you work for the USPS. It certainly does not want the private sector to raise militias to compete with the government’s police powers. Nevertheless, the implication is that the 2nd Amendment clearly implies that militias may be formed.

So let me try to define what a “well regulated” militia might be like. It would not do anything unconstitutional such as, for example, violate anybody’s right to life, liberty, or property without due process of law. Could it protect persons’ rights to life, liberty or property if they were deprived of these rights without due process of law? For example, what could a militia reasonably do in the face of property confiscations? I’ll leave these and similar questions unanswered.


Justice Stevens and the 2nd Amendment

Former Justice Stevens would like to rewrite the 2nd Amendment as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed. (The bold text would be added by Stevens.)

This change is preposterous, because it does not consider what comes just before service in a militia (let alone the militia). If and when corporate defense breaks down, there must be arms distributed throughout the population in order for a militia to come into existence.

A corporate defense means a governmental force such as a police force or an army. It is completely reasonable to consider the possibility of these governmental forces breaking down under, say, an EMP attack such as by Iran, North Korea, or China. In recent months, it has become clear that EMP warfare plays an important role in Chinese war fighting doctrine. One EMP weapon in low earth orbit exploded over Kansas would immobilize the continental US (along with southern Canada and northern Mexico). The military and police forces would not be able to move or to communicate. Small, local militias would be the principal hope for retaining remnants of civilization for quite a few months.

It is an extension of this understanding that makes the possession and use of arms necessary for home defense. The ability of citizens to defend their homes with force of arms reflects the fact that the police just can’t be everywhere at all times and that crooks try to be where police are not. The police just aren’t local enough, nor could they ever be, nor would we want them to be. One rather instructive source is The Armed Citizen page in the monthly American Rifleman magazine published by the NRA. Each month there are a half dozen or so reports of cases in which firearms have saved the lives of law abiding citizens. I understand the anecdotal nature of such reports. However, we do not need to rely on anecdotes when there are cities like Chicago that stand out as both murder capitals and bastions of gun regulation.


Decoupling health care insurance from employment

The Democrats are waxing enthusiastic about Obamacare having the effect of decoupling health care insurance from employment. Can you believe it; I share their enthusiasm . . . to a point. Health care insurance was originally linked to employers during WWII as a device to get around wage controls. As workers became more footloose in the intervening years, it became more and more obvious that there was a problem. The lack of portability emerged as the problem with people moving and changing employment more readily.

The Democrats view is that ACA actually reduces the need to work. They like the idea that health care insurance has been decoupled from work . . . a little different than being decoupled from employers. This is apparently true, but I do not share their enthusiasm about this. While we all might prefer to become painters and poets and have others provide for our health care (food, housing, etc.), somebody needs to work.

What made insurance work in the past was employer-based groups. These groups kept people insured even thought they developed an expensive health condition. If we diminish the importance of employer-based insurance, we need to find another way to generate groups. I have previously argued that one sort of group that is possible would be based on states. But then you have the problem of portability raising its ugly head. This can be handled by basing insurance on the state of birth. So regardless of where you live, your insurance would be based on your state of birth. Portability solved. Pre-existing conditions solved.

Republicans should take notice that when it comes time to redo the ACA, we need to consider how new groups are to be formed. Perhaps I have been wrong in pressing for groups to be based on state of birth. Instead, we could couple groups to work. One could do this by utilizing unions and other professional associations to be the groups of choice.