Why are so many people upset that the Obama White House keeps arbitrarily changing parts of Obamacare – even when bad provisions are being suspended or certain groups are being exempted from bad policy?

Well, some of them may simply dislike Obama or government-run healthcare, and there’s nothing wrong with being against a politician or rejecting bigger government.

But the most important reason to be upset is that the White House is making a mockery of the rule of law.

But what exactly is the rule of law? Why, for instance, does it have such a large impact on a nation’s grade in the Economic Freedom of the World Index?

This Learn Liberty video explains that the rule of law is critical because it creates a framework for honest exchange and it limits the power of politicians and government.

As Professor Bell states, the rule of law provides “a necessary framework for civil society” and enables “tolerance, liberty, and free trade.”

I also like that the video highlights the importance of having laws that are easy to understand, which means that Byzantine schemes like Obamacare are contrary to the rule of law – even if they are administered honestly.

Which explains why the tax code also is an affront to the rule of law, whether we’re looking at incomprehensible policy, illegal regulations, or extraterritorial application.

And the corrupt TARP bailout obviously is contrary to the rule of law as well.

Let’s now step back and take a big-picture look at the issue. Perhaps the best example of the rule of law is the United States Constitution. That sacred document was written precisely to limit the power of the state in hopes or preventing the capricious rule of men.

This Thomas Jefferson quote gets to the heart of the matter.

It’s embarrassing that the United States only ranks #19 in an international comparison of the rule of law. Particularly when the presence of the rule of law is the biggest factor that separates advanced nations from the developing world.

P.S. It’s discouraging that the Constitution’s protections of individual liberty have eroded, so let’s share a bit of good news.

I’ve written before about the threat posed by international bureaucrats who want to cartelize business taxation in order to enable higher tax rates.

Well, at least some American lawmakers are not on board with this scheme, as reported by Reuters.

Republican tax law writers in the U.S. Congress and multinational businesses on Monday said international talks aimed at preventing companies from moving profits to low-tax countries could hurt the United States. Representative Dave Camp and Senator Orrin Hatch of Utah warned of the effect on U.S. taxpayers from the Organisation for Economic Co-operation and Development’s (OECD) work to develop multilateral tax rules. Known as the Base Erosion and Profit Shifting (BEPS) project, the OECD effort calls for revising tax treaties, tightening rules and more government tax information sharing.

The Wall Street Journal also has criticized the OECD’s “global revenue grab.”

Let’s hope this is a sign that this leftist campaign for higher taxes has hit a brick wall.

As a libertarian, it’s easy for me to get agitated about the theoretical burden of high taxes, wasteful spending, and costly regulation.

But even regular people should get upset when they get exposed to specific examples of individuals who are victimized by abusive government.

Regarding the particular topic of Second Amendment freedoms and government misbehavior, I know I get very angry when I read about what happened to folks like Adam Meckler and Benjamin Srigley.

And now we can add Shaneen Allen to the list. Here’s some of what Glenn Reynolds of the University of Tennessee wrote for USA Today.

When Ray Rice beat his wife unconscious in an elevator, New Jersey Superior Court Judge Michael Donio and New Jersey District Attorney Jim McClain agreed to put him in a diversion program for 1st-time offenders to keep him out of jail. But when Pennsylvania single mom Shaneen Allen was pulled over for a traffic violation and volunteered to a New Jersey police officer that she was carrying a legally-owned handgun with a Pennsylvania permit, the response of Donis and McClain was to deny her the same opportunity as Rice. …she faces a felony conviction and a mandatory 42 months in prison. Both Donio and McClain have been unwilling to dismiss the charges, or send Allen to a pretrial diversion program. They seem to want to make an example of her.

How disgusting. A big-time athlete gets special treatment even though he brutalized another person.

But Ms. Allen, who didn’t hurt anybody and only wanted the ability to protect herself, is being abused by the heavy hand of government.

Professor Reynolds argues that this is a problem that merits federal intervention.

The problem is, she’s being punished for something the Constitution says — and the Supreme Court has agreed — is a constitutional right. …Shaneen Allen wasn’t committing gun violence, and civilians with gun permits are a very law-abiding bunch, who have passed a background check and undergone training; no sensible state would want to discourage them from visiting. …Under the Constitution, Congress has the power to protect civil rights via legislation, and this seems like a good subject for action. I would suggest a law providing that when people who may legally own guns under federal law are charged with possessing or carrying them in violation of state law, the maximum penalty should be a fine of no more than $500. This would allow states a reasonable degree of regulation, without subjecting individuals to life-ruining consequences just because some politico wants to make a point.

Speaking of politicos, I hope Governor Chris Christie intervenes and pardons Ms. Allen. Pre-emptively if that’s even legally possible.

A few years ago, he did commute the sentence of a guy who was similarly victimized by New Jersey’s awful laws, so he’s at least semi-reasonable on these issues.

Now let’s shift gears and review a more uplifting story.

Back in 2011, I wrote about the unfortunate plight of unarmed Brits who had very little ability to defend themselves when their neighborhoods were assaulted by rioters and compared that situation to what happened during the Los Angeles riots, when Korean business owners used guns to successfully protect their lives and property.

And I augmented that analysis in 2012 when I wrote about disarmed New Yorkers who were vulnerable to thugs during the chaos that followed Hurricane Sandy.

However, there are places where people can exercise their constitutional rights to self defense, so let’s look at a feel-good story from the Midwest.

Here are some excerpts from a report out of St. Louis.

After nightfall, what began as a community’s peaceful demonstration against the Ferguson Police Department’s shooting of unarmed 18-year-old Michael Brown turned increasingly violent. Crowds plundered a QuikTrip and burned it to the ground, and local news began reporting brazen raids on other stores in the area. After hearing of the roving bands of looters, Mike Gutierrez knew he had to protect his tattoo shop. He brought a posse with him, including Adam Weinstein, owner of County Guns… Gutierrez, Weinstein and their group arrived to find thieves tearing through a Dollar General in the same strip mall that houses their business. Weinstein says the looters attempted moving toward the shop, but were scared off by the guns.

Hooray that these guys had the freedom to defend themselves.

And I love the accompanying photo. At the risk of stereotyping, I assume that guys who run tattoo parlors are bad asses. Give them some guns and it becomes very obvious why the looters stayed away.

Though even mild-mannered suburban dads can deter looters. At least when they’re armed.

Meanwhile, what happens to store owners that rely on the government to protect them when bad things happen?

Well, there’s not a happy ending.

At the other end of the same strip mall that houses Gutierrez and Weinstein’s business, 53-year-old Silas Chung arrived at his women’s clothing store, Up N Up Fashion, to find a pane of glass shattered and a mannequin lying on its back in the parking lot. Inside the store, racks of newly stocked clothing had been stripped bare. Chung has endured a couple burglaries in the past nine years of running the store, but nothing comparable.

I hope Mr. Chung has insurance, though I would recommend that he also buy some guns and learn to shoot.

Sort of like this honest liberal.

P.S. As I’m typing this, I’m looking at the cufflinks that I received as a birthday present from the PotL. Very appropriate, wouldn’t you agree?

Perhaps not as strong of a statement as my license plate or my daughter’s t-shirt, but very nice nonetheless.

P.P.S. Here are some good videos on gun control (both serious and satirical) and here’s some good humor on the topic.

Back in 2013, I shared a snarky post comparing murder rates in Chicago and Houston. What made the data amusing is that any sensible person would look at Chicago’s high murder rate and strict gun control and conclude that perhaps, just maybe, such policies don’t work.

But the post speculated that a left-wing social scientist would instead conclude that “cold weather causes murder.”

Today, let’s take a more serious look at the issue.

Here’s a great video, narrated by Bill Whittle, that looks at gun ownership rates and murder rates. As you can see, America is the number one nation for gun ownership, but we’re nowhere near the top in murder rates.

Having had many arguments with leftists, I can tell you that their response to this video will be to point out that America has one of the highest murder rates if you look solely at developed nations.

That’s true, but this is why the most persuasive data in the video comes near the end when Bill looks at murder rates by major metropolitan areas.

He shows that pro-gun control cities have very high murder rates, whereas heavily armed, pro-gun places such as Plano, TX, have murder rates lower than some of the most tranquil places on the planet.

And although Bill doesn’t make the connection, it’s very much worth noting that Switzerland is one of the world’s most heavily armed nations, yet the murder rate is extremely low.

Moreover, there were no murders in the most recent years for which data are available in Monaco and Liechtenstein, yet I’ve been told during visits to both principalities that there is widespread private gun ownership.

Gee, maybe John Lott is right about more guns leading to less crime.

P.S. Since we’re sharing good news on guns, here’s a heartwarming story about civil disobedience. But this isn’t about civil disobedience solely by gun owners, as we’ve seen in Connecticut.

This is a story about civil disobedience sanctioned by a law enforcement officer!

J.D. Tuccille of Reason reports on the principled behavior of a sheriff in New York.

Fulton County Sheriff Thomas J. Lorey is already known as a supporter of the Second Amendment… Despite the Empire State’s fame as a jurisdiction unfriendly to private gun ownership—or, really, any activity beyond the reach of government officials—Lorey isn’t alone in his views. The New York State Sheriffs Association and individual sheriffs are already on record opposing tightened gun laws and suing the governor to block their enforcement. But Lorey goes a step further, and urges his constituents to defy the state’s handgun permit law. …”I’m asking everyone that gets those invitations to throw them in the garbage because that is where they belong,” says Lorey in the video below. “They go in the garbage because, for 100 years or more, ever since the inception of pistol permits, nobody has ever been required to renew them.”

Makes me proud to be an American when I read things like this.

Though I guess we shouldn’t be surprised to see law enforcement officers express skepticism about gun control. A poll of cops found that they overwhelmingly reject the left’s anti-gun ideology.

And let’s not forget about the poll showing an overwhelming majority of regular citizens would engage in civil disobedience if the government tried to confiscate guns.

P.P.S. Since it’s Super Bowl weekend, here’s a depressing reminder of the NFL’s anti-gun bias.

P.P.P.S. If you like pro-Second Amendment videos, here’s a great collection.

• Ted Nugent talking about gun ownership and the right of self defense.
• A look at Switzerland’s strong gun culture and the importance of self defense as a protection against oppression.
• And some very powerful testimony to some weasels on Capitol Hill (make sure to pay attention around the 5:00 mark).
• Ice-T talking about the real reason to defend and support the 2nd Amendment.
• A Reason TV video with five facts for Vice President Biden’s task force.
• A look at how a young woman can defend herself.
• Debunking the left’s “black NRA” parody.
• A 15-year old speaking truth to power.

And if you want gun control videos that are both funny and on the right side, here’s my collection.

• A revealing look at how leftists think about gun control.
• A heartwarming adoption story.
• An amusing cartoon conversation between an anti-gun ideologue and a supporter of the Constitution.
• Joe Biden’s self-defense advice.

To save the nation from a future Greek-style fiscal meltdown, we should reform entitlements.

But as part of the effort to restore limited, constitutional government, we also should shut down various departments that deal with issues that shouldn’t be handled by the central government.

I’ve already identified some low-hanging fruit.

Get rid of the Department of Housing and Urban Development.

Shut down the Department of Agriculture.

Eliminate the Department of Transportation.

We need to add the Department of Education to the list. And maybe even make it one of the first targets.

Increasing federal involvement and intervention, after all, is associated with more spending and more bureaucracy, but NOT better educational outcomes.

Politicians in Washington periodically try to “reform” the status quo, but rearranging the deck chairs on the Titanic never works. And that’s true whether you look at the results of GOP plans, like Bush’s no-bureaucrat-left-behind scheme, or Democratic plans, like Obama’s Common Core.

The good news, as explained by the Washington Examiner, is that Congress is finally considering legislation that would reduce the federal government’s footprint.

There are some good things about this bill, which will serve as the reauthorization of former President George W. Bush’s No Child Left Behind law. Importantly, the bill removes the Education Department’s ability to bludgeon states into adopting the controversial Common Core standards. The legislative language specifically forbids both direct and indirect attempts “to influence, incentivize, or coerce” states’ decisions. …The Student Success Act is therefore a step in the right direction, because it returns educational decisions to their rightful place — the state (or local) level. It is also positive in that it eliminates nearly 70 Department of Education programs, replacing them with more flexible grants to the states.

But the bad news is that the legislation doesn’t go nearly far enough. Federal involvement is a gaping wound caused by a compound fracture, while the so-called Student Success Act is a band-aid.

…as a vehicle for moving the federal government away from micromanaging schools that should fall entirely under state and local control, the bill is disappointing. …the recent explosion of federal spending and federal control in education over the last few decades has failed to produce any significant improvement in outcomes. Reading and math proficiency have hardly budged. …the federal government’s still-modest financial contribution to primary and secondary education has come with strings that give Washington an inordinate say over state education policy. …The Student Success Act…leaves federal spending on primary and secondary education at the elevated levels of the Bush era. It also fails to provide states with an opt-out.

To be sure, there’s no realistic way of making significant progress with Obama in the White House.

But the long-run battle will never be won unless reform-minded lawmakers make the principled case. Here’s the bottom line.

Education is one area where the federal government has long resisted accepting the evidence or heeding its constitutional limitations. …Republicans should be looking forward to a post-Obama opportunity to do it for real — to end federal experimentation and meddling in primary and secondary education and letting states set their own policies.

Amen.

But now let’s acknowledge that ending federal involvement and intervention should be just the first step on a long journey.

State governments are capable of wasting money and getting poor results.

Local governments also have shown that they can be similarly profligate and ineffective.

Indeed, when you add together total federal/state/local spending and then look at the actual results (whether kids are getting educated), the United States does an embarrassingly bad job.

The ultimate answer is to end the government education monopoly and shift to a system based on choice and competition.

Fortunately, we already have strong evidence that such an approach yields superior outcomes.

To be sure, school choice doesn’t automatically mean every child will be an educational success, but evidence from Sweden, Chile, and the Netherlands shows good results after breaking up state-run education monopolies.

P.S. Let’s close with a bit of humor showing the evolution of math lessons in government schools.

P.P.S. If you want some unintentional humor, the New York Times thinks that government education spending has been reduced.

P.P.P.S. And you’ll also be amused (and outraged and disgusted) by the truly bizarre examples of political correctness in government schools.

If I had to pick a government policy that would be most upsetting to our Founding Fathers, I’d be tempted to pick the income tax. Or maybe some useless agency, such as the Department of Housing and Urban Development.

After all, surely the Founders didn’t envision – or want – today’s Leviathan government in Washington.

But I also know I’m biased since I work on fiscal policy issues.

So upon further reflection, I think the policy that would be most horrifying to the Founding Fathers is so-called civil asset forfeiture, a.k.a., theft by government.

You may think I’m joking or exaggerating, but theft is the right word when you look at how citizens (such as the Dehko family and Lyndon McClellan) have had their bank accounts seized even though they were never even charged with a crime, much less ever committed a crime.

And now we have a new example that would have the Founders rolling in their graves, but also should get every decent person angry.

Reason has a report with the odious details.

…the Drug Enforcement Administration (DEA), is snatching the life savings of a young black male for the crime of being alone on a train. The man, Joseph Rivers, 22, was traveling from Michigan to Los Angeles by train with $18,000 in cash to pay for a music video. In Albuquerque, DEA agents boarded the train and started asking people questions. They got to Rivers, who told him he was going to shoot a music video and agreed to let them search his stuff.

Now put yourself in the mind of Mr. Rivers. You’re not committing a crime. You’re not in possession of any drugs or other illicit substances.

Agents ask to search your stuff as part of their snooping on the train and you figure being cooperative is the best way of allaying suspicion (regardless of whether the DEA used profiling).

And what’s your reward for being cooperative?

The Reason report then shares some very ugly passages from a story in the Albuquerque Journal.

Rivers was the only passenger singled out for a search by DEA agents – and the only black person on his portion of the train… In one of the bags, the agent found the cash, still in the Michigan bank envelope.

Mr. Rivers explained why he had the money, but it didn’t do any good.

“I even allowed him to call my mother, a military veteran and (hospital) coordinator, to corroborate my story,” Rivers said. “Even with all of this, the officers decided to take my money because he stated that he believed that the money was involved in some type of narcotic activity.” Rivers was left penniless.

Here’s perhaps the most disturbing part of the story is the way government bureaucrats openly admit that they can take money without any criminal charges, much less a conviction for any crime.

“We don’t have to prove that the person is guilty,” Waite said. “It’s that the money is presumed to be guilty.”

Just imagine how the Founding Fathers, if they were still around, would react to the statements of this bureaucrat?

Imagine what they would think of a policy that gave bureaucrats arbitrary powers to take money from citizens?

By the way, I’m not asking these rhetorical questions because I have some inside knowledge that Mr. Rivers is a stand-up guy. Maybe his story was fake and he actually was going to buy illegal drugs.

So what?

I’m tempted to point out at this point the foolishness of the Drug War, but that’s the point I want to make today. Heck, we can assume he had $18,000 because he intended to commit a real crime. Perhaps he was going to pay a hit man to kill someone.

At the risk of being repetitive, so what?

Our Constitution was set up to constrain the powers of government and protect citizens from abuse by government. We have a 4th Amendment to protect us from unreasonable search and seizure and we have the presumption of innocence so that we can’t be punished unless that’s the outcome of a proper legal proceeding.

Needless to say, allowing agents to steal money from train passengers is not what the Founding Fathers had in mind.

In a just society, there shouldn’t be shortcuts which trample people’s rights. Real police work should be used to amass evidence of real crimes, which then should be used in real courts where a jury can decide on guilt.

Let’s close with a few more passages from the Albuquerque story.

Rivers, 22, wasn’t detained and has not been charged with any crime since his money was taken last month. That doesn’t matter. Under a federal law enforcement tool called civil asset forfeiture, he need never be arrested or convicted of a crime for the government to take away his cash, cars or property – and keep it. Agencies like the DEA can confiscate money or property if they have a hunch, a suspicion, a notion that maybe, possibly, perhaps the items are connected with narcotics. Or something else illegal.Or maybe the fact that the person holding a bunch of cash is a young black man is good enough. …Meanwhile, Rivers is back in Michigan, dreaming, praying. “He’s handed this over to God,” his attorney said. Which seems infinitely safer than handing over anything further to government agents.

Amen.

I’ll make one final point.

In the absence of some evidence to the contrary, I’m not going to accuse the DEA agents of racial profiling. After all, government agents have stolen money from plenty of white people.

But I strongly suspect there was economic profiling. If Mr. Rivers was a 50-year old white guy in a business suit, the DEA probably wouldn’t have confiscated the money.

That doesn’t mean, by the way, that 50-year old white guys should rest easy. When government bureaucrats get away with stealing money from young people without power and connections, it’s probably just a matter of time before others get victimized as well.

Just keep in mind that slippery slopes are very slippery when government is involved.

P.S. Also keep in mind that asset forfeiture has become such an abusive nightmare that the first two heads of that division of the Justice Department now say the policy should be abolished.

P.P.S. I don’t know what’s riskier, riding trains while black or banking while Russian?

P.P.P.S. On a separate matter, the good people at the Competitive Enterprise Institute periodically measure the overall cost of regulation and red tape on the American economy. Their latest version of Ten Thousand Commandments was just released and it is very depressing reading.

Here are two charts (out of many) from the study. The first looks at the annual cost of federal rules.

The second chart looks at how the regulatory burden has grown over time.

As I said, very depressing. No wonder Santa Claus wasn’t happy with the end-of-year gifts he received last year from the Obama Administration.

If you want to go to a Presbyterian church instead of a Baptist church, should the government be able to interfere with that choice? Even if, for some bizarre reason, 95 percent of the population doesn’t like Presbyterians?

If you want to march up and down the sidewalk in front of City Hall with a sign that says the Mayor is an idiot, should the government be able to throw you in jail? Even if 95 percent of the population somehow has decided the Mayor is a genius?

Most Americans instinctively understand that the answer to all these question is no. Not just no, a big emphatic NO!

That’s because certain rights are guaranteed by our Constitution, regardless of whether an overwhelming majority of our fellow citizens feel otherwise.

And that’s what makes us a republic rather than a democracy.

But the bad news is that many of our rights in the Constitution no longer are protected.

For instance, Article I, Section 8, specifically enumerates (what are supposed to be) the very limited powers of Congress.

Our Founding Fathers thought it was okay for Congress to have the power to create courts, to coin money, to fund an army, and to have the authority to do a few other things.

But here are some things that are not on that list of enumerated powers (and certainly not included in the list of presidential powers either):

• Department of Agriculture
• Department of Housing and Urban Development
• Department of Education
• Department of Transportation
• Social Security
• Medicare
• Medicaid
• Food Stamps
• Obamacare
• Transportation Security Administration
• TARP
• Export-Import Bank

And the list could go on for several pages. The point is that the entire modern Washington-based welfare state, with all its redistribution and so-called social insurance, is inconsistent with the limited-government republic created by America’s Founders.

These programs exist today because the Supreme Court put ideology above the Constitution during the New Deal and, at least in the economic sphere, turned the nation from a constitutional republic into a democracy based on unconstrained majoritarianism.

Here’s some of Walter Williams wrote on the topic.

Like the founders of our nation, I find democracy and majority rule a contemptible form of government. …James Madison, in Federalist Paper No. 10, said that in a pure democracy, “there is nothing to check the inducement to sacrifice the weaker party or the obnoxious individual.” …John Adams said, “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide.” …The word “democracy” appears nowhere in the two most fundamental documents of our nation — the Declaration of Independence and the U.S. Constitution. …the Constitution’s First Amendment doesn’t say Congress shall grant us freedom of speech, the press and religion. It says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” …In a democracy, the majority rules either directly or through its elected representatives. …Laws do not represent reason. They represent force. The restraint is upon the individual instead of government. Unlike that envisioned under a republican form of government, rights are seen as privileges and permissions that are granted by government and can be rescinded by government. …ask yourself how many decisions in your life would you like to be made democratically. How about what car you drive, where you live, whom you marry, whether you have turkey or ham for Thanksgiving dinner?

And click here for a video that explains in greater detail why majoritarianism is a bad idea.

But perhaps these cartoons will make it even easier to understand why 51 percent of the population shouldn’t be allowed to rape and pillage 49 percent of the population.

We’ll start with this depiction of modern elections, which was featured on a friend’s Facebook page.

And here’s one that I’ve shared before.

It highlights the dangers of majoritarianism, particularly if you happen to be a minority.

P.S. George Will has explained that the Supreme Court’s job is to protect Americans from democracy.

P.P.S. Here’s more analysis of the issue from Walter Williams.

P.P.P.S. Some leftists are totally oblivious about America’s system of government.

P.P.P.P.S. Though Republicans also don’t really understand what the Constitution requires.

P.P.P.P.P.S. Looking at the mess in the Middle East, I’ve argued we would be in much better shape if we promoted liberty instead of democracy.

I feel compelled to comment on the Supreme Court’s latest Obamacare decision, though I could sum up my reaction with one word: disgust.

• I’m disgusted that we had politicians who decided in 2009 and 2010 to further screw up the healthcare system with Obamacare.
• I’m disgusted the IRS then decided to arbitrarily change the law in order to provide subsidies to people getting insurance through the federal exchange, even though the law explicitly says those handouts were only supposed to go to those getting policies through state exchanges (as the oily Jonathan Gruber openly admitted).
• I’m disgusted that the lawyers at the Justice Department and the Office of White House Counsel didn’t have the integrity to say that handouts could only be given to people using state exchanges.
• But most of all, I’m disgusted that the Supreme Court once again has decided to put politics above the Constitution.

In theory, the courts play a valuable role in America’s separation-of-powers system. They supposedly protect our freedoms from majoritarianism. And they ostensibly preserve our system of checks and balances by preventing other branches of the federal government from exceeding their powers.

To be sure, the courts – including and especially the Supreme Court – have not done a good job in some areas. Ever since the 1930s, for instance, they’ve completely failed to limit the federal government to the enumerated powers in Article 1, Section 8, of the Constitution.

The Supreme Court’s first Obamacare decision back in 2012 then took that negligence to a higher level.

Now we have a second Obamacare decision. And this one may be even more outrageous because the Supreme Court decided to act as a pseudo-legislature by arbitrarily re-writing Obamacare.

Here’s what George Will wrote about the decision.

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally. …The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging. …Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights.

Here’s the bottom line, from Will’s perspective.

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power.

Here’s how my Cato colleagues reacted, starting with Michael Cannon, our healthcare expert whose heroic efforts at least got the case to the Supreme Court.

…the Supreme Court allowed itself to be intimidated. …the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations… The Court today validated President Obama’s massive power grab, allowing him to tax, borrow, and spend $700 billion that no Congress ever authorized. This establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim.

Now let’s look at the responses of two of Cato’s constitutional scholars. Roger Pilon is less than impressed, explaining that the Roberts’ decision is a bizarre combination of improper deference and imprudent activism.

With Chief Justice Roberts’s opinion for the Court, therefore, we have a perverse blend of the opposing positions of the judicial restraint and activist schools that reigned a few decades ago. To a fault, the Court today is deferential to the political branches, much as conservatives in the mold of Alexander Bickel and Robert Bork urged, against the activism of the Warren and Burger Courts. But its deference manifests itself in the liberal activism of a Justice Brennan, rewriting the law to save Congress from itself. As Scalia writes, “the Court forgets that ours is a government of laws and not of men.”

And Ilya Shapiro also unloads on this horrible decision.

Chief Justice Roberts…admits, as he did three years ago in the individual-mandate case, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorts himself to eviscerate that “natural meaning” and rewrite Congress’s inartfully concocted scheme, this time such that “exchange established by the state” means “any old exchange.” Scalia rightly calls this novel interpretation “absurd.” …as Justice Scalia put it, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.” …like three years ago, we have a horrendous bit of word play that violates all applicable canons of statutory interpretation to preserve the operation of a unpopular program that has done untold damage to the economy and health care system.

Now I’ll add my two cents, at least above and beyond expressing disgust. But I won’t comment on the legal issues since that’s not my area of expertise.

Instead I’ll have a semi-optimistic spin. I wrote in 2013 that we should be optimistic about repealing Obamacare and fixing the government-caused dysfunctionalism (I don’t think that’s a word, but it nonetheless seems appropriate) of our healthcare system.

This latest decision from the Supreme Court, while disappointing, doesn’t change a single word of what I wrote two years ago.

P.S. Since today’s topic (other than my conclusion) was very depressing, let’s close by looking at something cheerful.

I’ve commented before that America has a big advantage over Europe because of a greater belief in self-reliance and a greater suspicion of big government.

Well, now we have further evidence. Here’s some polling data from AEI’s most recent Political Report. As you can see, there’s a much stronger belief in self-sufficiency in the United States than there is in either Germany or Italy.

Polling data like this is yet another sign of America’s superior social capital.

And so long as Americans continue to value freedom over dependency, then there’s a chance of fixing the mess in Washington. Not just Obamacare, but the entire decrepit welfare state.

In 2012, I shared some important observations from Jeffrey Goldberg, a left-leaning writer for The Atlantic. In his column, he basically admitted his side was wrong about gun control.

Then, in 2013, I wrote about a column by Justin Cronin in the New York Times. He self-identified as a liberal, but explained how real-world events have led him to become a supporter of private gun ownership.

Kudos to both gentlemen for putting accuracy ahead of ideology (just like I applauded the honest liberal who wrote how government programs subsidize dependency).

Well, we can add another person to our list of honest liberals. Jamelle Bouie, chief political correspondent for Slate, just authored a piece that says it is downright silly to fixate on so-called assault weapons and to try to deny people their 2nd-Amendment rights based on the TSA’s no-fly list.

Here’s some of what he wrote about scary-looking rifles.

… assault weapons—there’s no official definition for the term, which makes identifying them for prohibition difficult, if not impossible—are scary to many Americans, especially with their presence in high-profile shootings like the massacre at Sandy Hook Elementary in Newtown, Connecticut, or the theater killings in Aurora, Colorado. But out of 73 mass killers from 1982 to 2015, just 25 used rifles of any kind, including military-style weapons. Most used revolvers, shotguns, and semi-automatic handguns. Which gets to a related point: We might feel safer if we ban “assault weapons,” but we won’t be safer. Of the 43,000 Americans killed with guns since 2010, just a fraction—3.5 percent—were killed with rifles.

Mr. Bouie points out that almost all murders are with handguns, but – to his credit – he says you can’t try to confiscate those weapons because “A ban would be unconstitutional.”

He then addresses the use of the no-fly list as a means of imposing gun control.

…civil libertarians—and liberals, at least during the Bush administration—think it’s constitutionally dubious. They’re right. …If you’re on these lists, you’re presumed guilty until proven innocent, with no due process and little recourse. The list is conceptually flawed, and using it to deny gun ownership is wrong on its face. Add racial and religious profiling to the mix—the people on the list, including Americans, are disproportionately Arab or from Muslim countires—and you have an anti-gun measure with deep disparate impact.

Bouie isn’t actually a supporter of gun rights, as you can see from some of his concluding thoughts, but he at least recognizes that much of what we’re getting from Barack Obama and Hillary Clinton is empty posturing.

The sooner Democrats abandon ineffectual gun control measures, the sooner they can turn their attention to ideas that would actually limit gun accidents, suicides, and murders. …In all of this, however, gun control supporters should keep one fact in mind: The United States is saturated with guns, and barring confiscation or mandatory buybacks, there’s no way to end mass shootings. …You can read that as futility, but it’s not. It’s a recognition of reality and a plea for perspective.

I wonder if “a recognition of reality” is the first step on the path to being libertarian.

By the way, I can’t resist adding my two cents on the topic of Obama wanting to deny constitutional rights to folks who wind up on a list.

I recognize that there are plenty of people who should not be allowed on planes (and since I have to fly a lot, I have an interest in keeping nutjobs on the ground), but government lists leave a lot to be desired.

Consider, for instance, this tidbit from an article in the Washington Free Beacon.

Rep. Stephen Lynch (D., Mass.) disclosed that a congressional investigation recently found that at least 72 people working at DHS also “were on the terrorist watch list.”

Does this mean the federal government is so brain-dead that it has terrorists on the payroll?

Maybe, but another item from an editorial in the New York Times should make us wonder about the quality of these lists.

A 2007 audit found that more than half of the 71,000 names then on the no-fly list were wrongly included.

And I remember several years ago when – on multiple occasions – I wasn’t allowed back in the country until bureaucrats had taken me into windowless room for interrogation.

I never learned why this happened. Was there another Dan Mitchell with a sketchy pattern of behavior? Did the bureaucrats actually target me for unknown reasons?

More important, what if I had bitched and whined during one of these episodes and some spiteful bureaucrat decided to put me on one of the government’s lists?

And most important of all, can any of us trust that President Obama (or perhaps a President Hillary Clinton) wouldn’t misuse and/or expand these lists to arbitrarily deny constitutional rights?

By the way, Reason exposes some dishonest and hypocritical leftists.

Even though the ACLU opposes the no-fly list—and is suing the federal government for violating the due process rights of several people on it—the civil liberties advocacy group is theoretically okay with depriving people on the list of their gun rights.

But I’m digressing. Today’s topic is supposed to be how some honest liberals acknowledge the silliness of gun control efforts.

P.S. Let’s close with some good news on guns. It’s from a liberal who is reflexively hostile to the 2nd Amendment, but is quasi honest in that she’s willing to discuss polling data she dislikes.

Here’s some of what Catherine Rampell wrote in the Washington Post.

…millennials seem to have neither the desire nor the willpower to pressure our political leaders… Which does not bode well for liberals hoping that the arc of history will eventually bend toward greater gun control. …statements about protecting gun rights generally elicit at least as much support from younger Americans as from older ones. …This is a bit puzzling, given that younger Americans are less Republican in their political leanings than older people are and are also less likely to own a gun — two factors that are usually strong predictors of opposition to gun restrictions. These survey data suggest, then, that younger people might be especially predisposed to oppose gun-control measures, after controlling for these variables. …for the most part, young people reveal themselves to be at least as pro-gun-rights as their elders, if not more so.

I’m a skeptic of polling on this issue, largely because the questions often seem designed to elicit pro-gun control answers.

That being said, it’s good to see young people being more rational. Particularly since – as explained in this video – millennials have been at times hopelessly naive about the downside of bigger government.

P.P.S. If you want good news about public opinion and gun rights, click here, here, and here.

P.P.P.S. The best polls are the ones on election days.

I almost feel sorry for the gun-control crowd.

They keep trying to convince themselves that people are on their side, but schemes to restrict the 2nd Amendment keep getting defeated on Capitol Hill.

And when a handful of state governments go against the trend and try to trample on constitutional rights to gun ownership, politicians get tossed out of office and gun owners engage in massive civil disobedience.

Now we get to the icing on the cake.

The New York Times just released polling data showing that a majority of Americans are against banning so-called assault weapons. Look at the bottom line and see how the numbers have dramatically moved in the right direction.

These results are especially remarkable because many non-gun owners probably think “assault weapon” refers to a machine gun.

In reality, the types of guns that some politicians want to ban operate the same as other rifles (one bullet fired when the trigger is pulled), and they’re actually less powerful than ordinary hunting rifles. I imagine if people had that information, support for these weapons would be even higher than what we see in the poll.

Another reason I almost feel sorry for our leftist friends is that they must be going crazy that terrorist attacks and mass shootings aren’t swaying public opinion in their direction.

But they’re underestimating the wisdom of the American people. Most Americans may not have strongly held philosophical views on gun issues, but they’re smart enough to realize that bad people almost certainly will be able to obtains guns, even if they have to do so illegally (as is the case in Europe).

So the net result of gun-free zones and gun control is more danger to the public since evil people will have greater confidence that victims will be disarmed. And that rubs people the wrong way because they’re smart enough to pass the IQ test that causes such angst for our left-wing friends.

Moreover, I think folks are getting tired of the dishonest propaganda from the White House.

Normally the establishment media is a willing co-conspirator with the Administration, but – as you can see from this footage from a White House press briefing (h/t: Michelle Malkin) – one reporter actually committed an act of journalism and the net result is that the White House’s spin doctor was forced to confess that 1) none of Obama’s proposed policies would have stopped a single mass shooter from getting weapons, and 2) not a single mass shooter is on the Administration’s no-fly list or terrorist watch list. Enjoy.

You can tell, by the way, that the White House has done some polling on how to sell its approach, referring over and over again to buzz phrases such as “common sense” and “gun safety.”

Yet if common sense actually guided policy,the Obama Administration would be trying to make it easier for law-abiding people to get guns.

Now let’s look at another video.

You may remember that I wrote last week about the White House’s attempt to deny 2nd-amendment rights to people who get unilaterally placed on the no-fly list without any due process legal rights.

Well, that topic came up at a hearing held by the House Committee on Oversight and Government Reform. Congressman Trey Gowdy took the opportunity to ask one of Obama’s appointees whether they intend to preemptively infringe on other freedoms in the Bill of Rights.

On one level, this video is very amusing. The Obama official is like a deer in the headlights and eventually confesses that she doesn’t have an answer.

But if you think about the issue more deeply, it’s really worrisome that we have a president and an administration that treat the Constitution and Bill of Rights as something that can be cavalierly discarded whenever there’s a conflicting short-term political objective.

Makes me think the humorous image I shared back in 2012 wasn’t a joke after all.

So let’s make something completely clear. The 5th Amendment constitutionally guarantees that American citizens can’t be deprived of their rights in the absence of some sort of legal process.

Which is precisely the point that Congressman Gowdy was making. The Obama Administration wants to preemptively curtail 2nd Amendment freedoms based on the arbitrary whims of bureaucrats.

Here’s the relevant language.

So the bottom line is that the White House is so ideologically rigid on guns that it is willing to run roughshod over the Constitution even though it admits that its gun control proposals would not have stopped a single mass shooter.

But I guess you have to give them credit for being consistent.

Though I guess this is where I confess to once again feeling sorry for statists. Imagine having to defend this approach!

Let’s close with some humor.

Here’s a very clever video featuring a burglar’s perspective on gun control.

P.S. Here’s my collection of other humorous videos mocking the gun grabbers.

• A revealing look at how leftists think about gun control.
• A heartwarming adoption story.
• An amusing cartoon conversation between an anti-gun ideologue and a supporter of the Constitution.
• Joe Biden’s self-defense advice.

P.P.S. Last but not least, I’ll share an amusing joke.

Participating in a gun buy-back program because you think that criminals have too many guns is like having yourself castrated because you think your neighbors have too many kids.

And if you want even more gun control humor, click here.

The Constitution and Bill of Rights exist to protect our civil liberties from government. And that’s true whether the attack on our rights is legislative or bureaucratic. For instance:

• Our 1st Amendment rights to participate in the political process are – or at least should be – inviolate, even if some politicians think they can magically legislate away our rights to political speech.
• Our 2nd Amendment right to keep and bear arms is – or at least should be – inviolate, even though many politicians want to curtail our ability to defend ourselves.
• Our 4th Amendment right to block the government from spying on us without a search warrant is – or at least should be – inviolate, even though it has been unfortunately narrowed.
• Our 5th Amendment rights against the government taking our life, liberty, and property without due process are – or at least should be – inviolate, notwithstanding politicians who want more power for government.

As a lawyer, Hillary Clinton should these simple facts about the Bill of Rights.

But if this tweet is any indication, she must have slept through those lectures while at law school.

Yup, her position is that you lose your constitutional rights if some bureaucrat puts you on a secret list. Sort of like the Department of PreCrime from Minority Report.

If you wonder why this matters, check out Congressman Trey Gowdy’s brilliant evisceration of one of Obama’s political appointees.

Though it’s important to note that this isn’t – or shouldn’t be – a partisan or ideological issue. There are some honest folks on the left who very much support the right to due process and are very critical of the White House’s agenda.

For what it’s worth, at least some pro-gun control politicians admit that the Constitution is an obstacle.

As reported by the Washington Examiner, Senator Manchin of West Virginia is honest about his desire to run roughshod over the Bill of Rights.

Sen. Joe Manchin, D-W.Va., said Thursday that due process is one of the “big problems” standing in the way of lawmakers passing legislation that would keep suspected terrorists from purchasing firearms, and argued that the Fifth Amendment is “killing us right now.” “The problem we have, and really the firewall we have right now, is due process. It’s all due process,” he said Thursday on MSNBC’s “Morning Joe.”

Then again, if Hillary and her supporters think that merely being a suspect of wrongdoing is sufficient to take away people’s rights, then perhaps this sarcastic response to Mrs. Clinton should be a serious proposal.

By the way, the Orlando terrorist apparently wasn’t on the no-fly list, according to Bloomberg, so Obama, Clinton, and others don’t even have a factual basis for this latest assault on the Bill of Rights.

Interestingly, the White House admitted late last year that no mass shootings would have been stopped by any of the Administration’s anti-gun proposals, and it appears that is still the case today.

Now let’s look at the practical case against more gun control, especially with regards to the campaign against so-called assault weapons (which, other than some cosmetic features, are the same as traditional rifles).

John Lott and Larry Correia already have produced very powerful evidence in defense of these weapons.

Now here’s a video on the topic from a former Navy Seal.

The Wall Street Journal also is appropriately dismissive of calls for additional gun control.

Hillary Clinton and other Democrats have called for reinstating Bill Clinton’s ban on “assault weapons.” If her version works as well as her husband’s did, the terrorists will have won. From 1994 to 2002 Congress barred the sale of 18 types of rifles and shotguns that had “military style” attributes. This definition was purely political…the ban had a negligible impact on gun crime. So-called assault rifles accounted for about 2% of gun crimes prior to the ban, and the percentage of murders committed with rifles today (2% in 2014) is less than the 3% in the last year of the ban. …numerous studies, including one commissioned by the Department of Justice, …found no link to the ban and reduced crime.

For what it’s worth, places with lots of gun control (such as Europe) don’t get good results.

The media this week are full of stories about gun-death rates, without bothering to note that most of the surge is occurring in cities like Chicago that have the strictest gun laws. …As for stopping terrorism, California is among the states that continued to ban assault weapons after the federal version expired. But that didn’t stop the San Bernardino killers, who used modified rifles that violated the law. France’s strict gun laws also didn’t stop the Paris assailants.

Also writing for the Wall Street Journal, a lawyer from Florida, Ms. Ashley Lukis, is understandably irked by those who want to use terrorism as an excuse for gun control.

Instead of blaming the perverse militants who have formed a “caliphate” in Iraq and Syria, who are burning people alive, who are raping and murdering women and children, and who are engaging in an aggressive global propaganda campaign to encourage precisely the murderous behavior that we saw in Orlando, in San Bernardino, in Brussels and in Paris—many Americans are attacking other law-abiding citizens who happen to hold a different interpretation of the Constitution. …We are dealing with terrorism. We are talking about evil individuals who will happily strap bombs to their bodies or hijack a commercial airliner or set off homemade explosives in the middle of a crowded street. And the best solution you can come up with is domestic gun control? …The solution to terrorism is not to pass imperfect laws that will palliate the masses until next time. Nor is the solution to look inward, to make speeches, to tweet about your grief or start a hashtag. The solution to terrorism is not to blame the gun lobby.

Amen.

But let’s not stop there, because there are some people who deserve to be blamed.

Kevin Williamson’s National Review column is must reading. He starts by dismissing the left’s proposals.

The Democrats’…proposal — having police agencies compile secret lists of possible subversives and revoking their legal rights with nothing resembling due process — is plainly unconstitutional, and wouldn’t withstand five minutes’ legal examination. …they’re talking about: keeping a list of people who have been identified by police agencies as possible threats, but who never have been charged with, much less convicted of, any crime, and rescinding their ordinary constitutional rights without so much as a court hearing. We cannot prohibit people from buying guns with no due process for the same reason we cannot subject them to arbitrary incarceration or hunt them for sport. …Study after study after study has shown that the assault-weapon ban had zero effect on violent crime when it was in effect, and it almost certainly wouldn’t have one now, either. …Democrats keep saying that they don’t want to take away our guns, but that is, in fact, what this policy would demand.

But what we can do – but don’t – is actually enforce existing laws.

Such as those against “straw buyers.”

These cases are lots of work and generally don’t ensnare big-time criminals, but rather the idiot nephews, girlfriends, and grandmothers of big-time criminals. Putting those people in federal penitentiaries for ten years isn’t going to win anybody any friends. But they are the people who render our current background-check laws ineffective against the criminals who have turned parts of Chicago into a free-fire zone. Putting a few dozen of them away for a few dozen years might provide a strong disincentive for other would-be straw buyers, particularly those who (as is not uncommon) engage in straw buying as a commercial endeavor.

Or when the government botches the background check.

In tens of thousands of cases each year, the FBI discovers, after the fact, that the sale should not have proceeded. At this point, it issues an alert to the ATF, which in most cases then . . . does nothing at all. In a study of the 2000 data, there were about 45,000 sales that the FBI wrongly allowed to proceed, and in about 38,000 of those cases, no effort was made to recover the firearm. …Picking up wrongly sold guns isn’t that big a chore. In fact, since most of these prohibited buyers have committed a serious crime in buying a gun (though many of them may not have known it — otherwise, why go to a licensed dealer?) a strongly worded letter (“Return your gun to the dealer or go to federal prison”) and a bit of follow-up ought to do the trick.

And that gets us to Kevin’s main point.

The government does a crappy job of stopping bad guys for the simple reason that government does a crappy job of doing anything.

…killers and future killers are on the street committing their crimes because our criminal-justice system, with its vast resources, does not do its job. The police, the prosecutors, the jailers, and the parole-and-probation authorities all must answer for the fact that such a large share of our murders are committed by people already well known to law enforcement. …a fair number of crimes that could be prevented, if the people we pay to prevent them were willing to do the old-fashioned police work necessary: running down criminals, prosecuting unglamorous cases, properly managing parolees. But those jobs are entrusted to government employees, whose unions are irreplaceable benefactors of Democratic political campaigns. …expecting the generously compensated and gorgeously pensioned employees of the public sector to do their goddamned jobs…is, if you’re a scheming, opportunistic lowlife like Chuck Schumer, unthinkable.

Exactly. As Mark Steyn has noted, what’s the point of having a bloated and sclerotic public sector if it doesn’t even do the small handful of things that are legitimate functions of government?

No wonder researchers have found that small government is more efficient.

P.S. In addition to the gentleman cited above, there are other honest folks on the left.

In 2012, I shared some important observations from Jeffrey Goldberg, a left-leaning writer for The Atlantic. In his column, he basically admitted his side was wrong about gun control.

Then, in 2013, I wrote about a column by Justin Cronin in the New York Times. He self-identified as a liberal, but explained how real-world events have led him to become a supporter of private gun ownership.

P.P.S. If you like pro-Second Amendment videos, here’s a great collection.

• Ted Nugent talking about gun ownership and the right of self defense.
• A look at Switzerland’s strong gun culture and the importance of self defense as a protection against oppression.
• And some very powerful testimony to some weasels on Capitol Hill (make sure to pay attention around the 5:00 mark).
• Ice-T talking about the real reason to defend and support the 2nd Amendment.
• A Reason TV video with five facts for Vice President Biden’s task force.
• A look at how a young woman can defend herself.
• Debunking the left’s “black NRA” parody.
• A 15-year old speaking truth to power.
• Bill Whittle looking at global gun data.
• Howard Stern defending gun rights.

It sounds arcane and pedantic, but the United States has a democratic system of government but is not (or at least was not) designed to be a democracy.

A democracy implies that 51 percent of the people have the power to elect a government with unlimited powers to exploit 49 percent of the people.

The United States instead is a constitutional republic. That means very clear limits on the power of government. And very clear limits, as George Will has properly explained and E.J. Dionne never learned, on democracy.

The bad news is that constitutional limits on the size and power of government have been eroding. The drift in the wrong direction began with Woodrow Wilson and the so-called progressives, accelerated during the New Deal (ratified by the horrible Supreme Court decision in Wickard v. Filburn), and has intermittently continued in the post-World War II era.

The laughable news (in a sad way) is that some politicians are willing to openly display their ignorance on these matters.

The Washington Examiner reports on (what has to be) the year’s most remarkable example of historical and legal illiteracy.

A House Democrat said Wednesday that it “really bothers me” when people claim the U.S. Constitution was designed to limit the federal government’s power. …Rep. Jerrold Nadler, D-N.Y., said the founding document of the U.S. was designed for the “opposite” purpose. …”The Constitution was enacted to strengthen government power to enable central government to lay taxes and to function effectively…” said Nadler.

Wow.

Talk about claiming that night is day and up is down.

Let’s look at the actual document. Article II of the Constitution makes the President the nation’s Commander-in-Chief, which obviously is important, but otherwise limits the office to an administrator role.

All law-making power is granted to Congress.

And if you read Article 1 of the Constitution, specifically the enumerated powers in Section 8, you’ll see the areas where Congress has the right to make laws. You get a very clear view that the Founding Fathers wanted very firm limits on the central government.

Those “enumerated powers” include fewer than 20 specific items, such as “coin money” and “maintain a navy.”

There’s nothing in there about a Department of Housing and Urban Development. Nothing about Medicaid.

And, notwithstanding the elastic anti-constitutional gymnastics of Chief Justice John Roberts, nothing about mandating the purchase of government-approved health insurance.

To be fair, there’s a tiny sliver of truth to Congressman Nadler’s argument.

Compared to the Articles of Confederation (in effect from 1781-1789), the Constitution did give more power to the central government.

But that simply meant that the central government had a very small amount of power compared to a tiny amount of power.

Since I’m a thoughtful and helpful guy, here’s something I created to help Congressman Nadler understand constitutional restraints on the power of government.

This is just a back-of-the-envelope estimate, so I openly admit that I don’t know where to place the current system on this spectrum. We’ve unfortunately traveled a long way on the path to untrammeled majoritarianism in the United States. But voters and politicians haven’t chosen to translate their ability into an all-powerful central government.

In other words, majoritarianism can lead to pervasive statism (i.e., voluntarily electing a communist or fascist government).

But there also are majoritarian systems such as Switzerland where people vote to limit government.

Likewise, monarchies can be benign, such as in the United Kingdom or the Netherlands. Or they can be forms of absolute rule akin to communism and fascism.

For purposes of today’s discussion, though, all that really matters is that both the Articles of Confederation and the Constitution were explicitly designed to limit the powers of the central government.

And while it may upset people in Washington, that means the federal government should be much smaller than it is today. Not only fewer departments, agencies, and programs, but also no involvement in underwear, college football, Major League Baseball, condoms, birth control, or the National Football League.

P.S. Yes, the 16th Amendment (sadly) gave Congress broad powers to tax, but that’s not the same as giving the federal government broad powers to spend.

P.P.S. Republicans have actually endorsed language implying that most of the federal government should be dismantled. I wish they were serious.

One of the big challenges for libertarians is that we understand “public choice theory.” In other words, we know that people attracted to government will have both the incentive and the power to do bad things, so our quandary is how to give government the authority to provide so-called public goods without sowing the seeds for an oppressive Leviathan state.

Our Founding Fathers thought they solved this problem by drafting and ratifying a constitution that placed firm limits on the power of government. Sadly, that system largely broke down in the 1930s and 1940s as the Supreme Court ceded its role of protecting economic liberty (with John Roberts a few years ago providing the icing on the cake of untrammeled government power).

That’s the bad news.

The good news is that the judicial branch has done a somewhat better job of protecting personal liberty. Indeed, with the courts leading the way on certain issues (such as whether governments can persecute people for being gay), we may even have more personal liberty than the Founders intended.

Speaking of personal liberty, one of the thorniest challenges is that we want government to fight crime, but we also want to make sure that it doesn’t have the power and authority to trample individual rights.

That’s one of the reasons the Founding Fathers gave us a Bill of Rights that protects our right to a speedy trial, protects us from double jeopardy, and gives us the right to remain silent. And the Bill of Rights also protects us by requiring governments to get judicial approval (search warrants) before snooping into out private property. And that’s the focus of today’s column.

And the case study for our discussion will be the way government is seeking to access electronic data without following proper procedures. Veronique de Rugy provides the background in her column for Reason.

The Electronic Communications Privacy Act was passed in 1986, when data storage was considerably more expensive and primitive. At the time, it was not common for data to be kept online for very long. As such, the ECPA considers emails held online by a third party for more than 180 days to be abandoned and thus open to access by law enforcement without a normal warrant. …Now that free online email hosts are commonplace and terabytes of cloud storage are available at little cost, the ECPA is a troubling anachronism. Today’s internet users expect their data to be protected from prying government eyes for as long as they choose to store it.

Amazingly, some politicians actually want to fix this problem.

There is a bill making its way through Congress that attempts to address these issues. It’s the International Communications Privacy Act. The bipartisan bill—introduced by Sens. Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev.—…would codify into law a simple and clear standard: A warrant should always be required to access private information from a third party. The reforms in the ICPA would move us away from the current ’80s drama. It also seems that the package could even move through Congress during a contentious election season because it safeguards consumer data while also acknowledging that there must be legitimate and accessible law enforcement tools to pursue digital evidence across borders.

By the way, this has become an issue in part because the courts have intervened to slap down overzealous law enforcement in a cross-border investigation,

…the 2nd U.S. Circuit Court of Appeals rebuked the Justice Department after a three-year legal battle with Microsoft, which hosted data for an Irish citizen being pursued by U.S. authorities. The data was being kept in a server located in Ireland, yet the U.S. government insisted it had jurisdiction to demand access just because the company that held it is a subsidiary of Microsoft, an American corporation. …ECPA…provides no authority for access to data held overseas. The government officials most likely made this overreach rather than go through the mutual legal assistance treaty, or MLAT, process—which would have enabled them to work with the appropriate overseas authority—because of the fact that MLAT procedures are also cumbersome and outdated.

The Hatch-Coons-Heller legislation deals with these issues by both requiring warrants but also improving the MLAT process, which is a win-win situation. Innocent people have their rights protected and governments have a better system for investigating potential bad guys.

Which helps to explain why a coalition of taxpayer organizations and free-market groups have embraced the proposed legislation.

The bill contains provisions that would protect the privacy of American citizens, promote cross-border data flow, provide adequate tools for law enforcement, and enhance the nation’s global trade agenda. …S. 2986/H.R. 5323 would require U.S. law enforcement agencies to obtain a warrant for the content of electronic communications stored with electronic communications service providers and remote computing service providers.  The legal framework will allow authorities to obtain the electronic communications of U.S. persons, regardless of where those communications are located.  …S. 2986/H.R. 5323 reforms the MLAT process and provides greater accessibility, transparency, and accountability by requiring the attorney general to create an online docketing system for MLAT requests and publish new statistics on the number of such requests. …ICPA strikes the right balance between the legitimate needs of law enforcement and the privacy of American citizens, while enhancing international agreements.

Having looked at a specific example of how to enable effective law enforcement while also protecting civil liberties, let’s now zoom out and consider the big picture.

One of the problems in our system is that there are too many laws. Not just too many laws, but laws that are capricious and impossible to understand.

This is why Harvey Silverglate wrote Three Felonies a Day to describe how normal, law-abiding people unintentionally commit crimes (that shouldn’t be crimes).

Here’s a video interview from Reason with Mr. Silverglate.

The bottom line is that when you mix capricious and impossible-to-understand laws with capricious and vindictive bureaucrats, you get horrifying examples of government thuggery.

We can start by getting rid of drug laws, anti-money laundering laws, and civil asset forfeiture laws.

Remember, if we want to fight genuine crime, it’s a good idea to have just laws.

P.S. And if we have fewer bad and needless laws, we’ll have less police abuse.

P.P.S. To close on a humorous note, President Obama’s approach to the Bill of Rights leaves much to be desired.

P.P.P.S. In reference to the public-goods/Leviathan-state quandary discussed at the start of this column, the anarcho-capitalists say the solution is to abolish all government and to allow markets to provide public goods. I’m glad there are scholars pushing this idea (and I certainly had lots of interesting discussions about this concept while in grad school), but given what’s been happening over the past 100 years, I doubt this will be a practical option in my lifetime.

The libertarian approach to crime is both simple and sensible.

• First, only activities that harm other people should be against the law. So get rid of laws against drugs, gambling, cash deposits, and other victimless crimes.
• Second, make sure that government behaves properly and respects constitutional rights while investigating and prosecuting criminality.
• Third, impose appropriate punishment on those properly convicted of harming other people.

In other words, be “tough on crime,” but make sure there’s a morally just system.

And I should consider adding a fourth principle, which is that laws shouldn’t be a way for governments to pad their budgets with unfair fines and other cash penalties.

With this in mind, let’s explore a practical example of why it’s a good idea to make sure governments respect due process and civil liberties. I wrote last year about how the Justice Department wrongly asserted that it has the right, without following due process, to reach outside America’s borders to obtain personal information.

In part, the bureaucrats at DOJ are exploiting old law that doesn’t provide clear guidance on how to deal with modern electronic communication and data storage. Fortunately, that’s something that should be easy to fix.

Veronique de Rugy of the Mercatus Center correctly identifies the key issue in a column for Reason., starting with the fact that courts fortunately are not giving the feds a blank check.

…the Justice Department…asserted that a U.S. search warrant should carry jurisdiction over the data of an Irish citizen being stored on a server in Ireland simply because it is owned by Microsoft, an American corporation. Thank goodness the federal appeals court has now rejected the government’s attempt… The outcome affirms a landmark defense of privacy rights against law enforcement overreach and clearly establishes that the U.S. government does not have jurisdiction over the entire world. It also removes a major threat to the competitiveness of U.S.-based multinational companies, which must operate under the privacy rules of the countries in which they operate. Many of those countries unsurprisingly take a dim view of U.S. government efforts to pry into the lives of their citizens.

But it would be good if lawmakers modified the law so that it reflects today’s world.

Members of Congress, however, shouldn’t count on either the courts or the Trump administration. Instead, they could address the fundamental issue. The root of the problem is a common one. A law—the Electronic Communications Privacy Act—was enacted in 1986 to address issues raised by the technology at the time, and Congress never bothered to update it despite significant advancements in the decades since. …This has also resulted in massive privacy blind spots—such as the ECPA’s considering emails held by a third party for over 180 days to be abandoned, allowing them to be accessed with a simple subpoena instead of a judge-issued warrant. Also of concern is that the process for working with foreign governments when investigations cross jurisdictions—through mutual legal assistance treaties, or MLATs—has been seen by officials as too cumbersome to pursue. Excessive bureaucratic red tape, in other words, has encouraged investigators to engage in a troubling power grab.

And there was legislation last Congress to address these problems, with a new version already introduced in the new Congress.

…a bill, the International Communications Privacy Act, that sought to resolve both of these issues. It would have updated privacy rules to acknowledge modern technological reality by doing away with such silly provisions as the 180-day rule. It also would have streamlined MLAT procedures to make international cooperation more practical. Another bill, the Email Privacy Act, was just reintroduced in the current Congress and would also update the ECPA.

Amazing the House already has approved the legislation.

The House of Representatives today approved by voice vote the Email Privacy Act (H.R. 387) to protect Americans’ privacy and public safety in the digital age. …a statement from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) applauding passage of the bill. …“The U.S. Constitution protects Americans’ property from unreasonable searches and seizures and we must ensure that this principle continues to thrive in the digital age. …As technology has far-outpaced the Electronic Communications Privacy Act of 1986, the Email Privacy Act modernizes this decades-old law to establish a uniform warrant requirement to acquire stored electronic communications in criminal investigations. These updates to the law will better safeguard Americans’ constitutional rights while also protecting law enforcement’s ability to fight crime.  As the House again has overwhelmingly approved this bill, it’s time for the Senate to take up this bipartisan legislation and send it to the President’s desk to become law.”

The tech community is happy about this progress, though it’s also concerned the Senate once again will be the stumbling block.

…the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. …It’s great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. …the fact that they’re willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won’t try to muck it up again.

I guess we’ll see whether there’s progress this year or next year.

In the meantime, let’s hope that lawmakers are guided by the three principles of good criminal justice policy.

P.S. And if politicians fail to follow those principles, then citizens should not feel obliged to follow unjust laws, (and hopefully their peers will back them up by practicing jury nullification).

P.P.S. Since courts almost always grant search warrants, I’ve never understood why law enforcement officials want to get around this constitutional principle. Moreover, I’ve never seen any evidence that the fight against real crime somehow is compromised by having to comply with the 4th Amendment. So now, perhaps, you’ll understand why I’m willing (albeit only on one occasion) to side with Ruth Bader Ginsburg over Clarence Thomas.

P.P.P.S. If there was a prize for undermining the Bill of Rights, Obama probably would have it on his mantelpiece.

Because America’s Founding Fathers properly wanted to protect citizens from government abuse, the Constitution has several provisions (presumption of innocence, ban on warrantless searches, right to jury trial, 5th Amendment protection against self-incrimination, and other due process legal protections) to protect our liberties.

So one can only imagine how Jefferson, Madison, Mason, et al, must be rolling in their graves as they contemplate the disgusting practice of civil asset forfeiture, which basically allows agents of the government in the modern era to steal property from people who have not been convicted of any crime. I’m not joking.

Even worse, government agencies are allowed to profit from this form of theft, creating a terrible incentive for abuse.

Like certain other bad government policies that trample our rights (i.e., money-laundering laws that require banks to snoop on law-abiding customers), civil asset forfeiture is largely a result of the government’s failed War on Drugs. In other words, a classic example of one bad policy leading to other bad policies.

Widespread condemnation of civil asset forfeiture led to a tiny step in the right direction by the Obama Administration. And there have been positive reforms at the state level.

However, the Trump Administration and Justice Department are now pushing in the wrong direction.

Writing for USA Today, Professor Glenn Reynolds correctly castigates the Attorney General for his actions.

Attorney General Jeff Sessions wants to steal from you. Oh, he doesn’t call it that. He calls it “civil forfeiture.” But what it is, is theft by law enforcement. Sessions should be ashamed. If I were president, he’d be fired. Under “civil forfeiture,” law enforcement can take property from people under the legal fiction that the property itself is guilty of a crime. …It was originally sold as a tool for going after the assets of drug kingpins, but nowadays it seems to be used against a lot of ordinary Americans who just have things that law enforcement wants. …Once in America, we had a presumption of innocence. But that was inconvenient to the powers that be. The problem is pretty widespread: In 2015, The Washington Post reported that law enforcement took more stuff from people than burglars did. …Sessions is doing exactly the wrong thing by doubling down on asset seizure. The message it sends is that the feds see the rest of us as prey, not as citizens. The attorney general should be ashamed to take that position.

David French of National Review is similarly disgusted.

…civil asset forfeiture. It’s a gigantic law-enforcement scam (in 2014 the government took more money from citizens than burglars stole from crime victims), and it’s a constitutional atrocity. It’s a constitutional atrocity that Donald Trump’s Department of Justice just expanded. Yesterday, Attorney General Jeff Sessions revived an abusive program that allows state authorities to seize property and then transfer the property to the federal government to implement the forfeiture process. Once the Feds obtain forfeiture, they then share the proceeds with the seizing state agency. This allows state law enforcement to explicitly circumvent state forfeiture restrictions and profit while doing so. …civil forfeiture allows the government to deprive citizens of their property even when it doesn’t even try to prove that the citizen committed a crime. …if the last 30 years of constitutional jurisprudence have taught us anything, it’s that we can’t count on courts to protect the Constitution when the War on Drugs is at issue. Forfeiture expanded dramatically as part of the War on Drugs, and the Supreme Court has proven that it will undermine even the First Amendment when constitutional rights clash with drug-enforcement priorities.

Erick Erickson adds his condemnation in the Resurgent.

Attorney General Jeff Sessions…has decided to expand a positively unconstitutional policy that should be ruthlessly fought in courts and legislatures around the country. Jeff Sessions wants to seize the property of Americans accused of crimes even if they are never found guilty by a jury. …According to the Department of Justice’s Inspector General, the Drug Enforcement Agency alone has seized more than $3 billion from people not charged with a crime. …What is appalling here is that many states are enacting prohibitions on civil asset forfeiture, but the Attorney General wants to allow state and local law enforcement to use federal asset forfeiture laws to continue seizing property. Local law enforcement will thereby be able to get around their own states’ laws, so long as they share the spoils of their ill gotten gains with the federal government. This turns the concept of federalism on its head.

In a column for Reason, Damon Root of Reason adds his two cents.

…civil asset forfeiture is not a “lawful tool.” It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process. …Supreme Court Justice Clarence Thomas…recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture “led to egregious and well-chronicled abuses” by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.

Last but not least, the editors of National Review make several important points.

Like the Democrats’ crackpot plan to revoke the Second Amendment rights of U.S. citizens who have been neither charged with nor convicted of a crime simply for having been fingered as suspicious persons by some anonymous operative in Washington, seizing an American’s property because a police officer merely suspects that he might be a drug dealer or another species of miscreant does gross violence to the basic principle of due process. No doubt many of the men and women on the terrorism watch list are genuine bad guys, and no doubt many of those who have lost their property to asset forfeiture are peddling dope. But we are a nation of laws, which means a nation of procedural justice. If the DEA or the LAPD wants to punish a drug trafficker, then let them build a case, file charges, and see the affair through to a conviction. We have no objection to seizing the property of those convicted of drug smuggling — or of crimes related to terrorism, or many other kinds of offenses. We object, as all Americans should object, to handing out these punishments in the absence of a criminal conviction. …No American should be deprived of liberty or property without due process.

Amen.

For those of us who honor the Constitution, civil asset forfeiture is a stain on the nation.

Let’s close with an amusing take on the issue. Even though he’s referred to me as insane and irrational, I think Matthew Yglesias wins the prize for the most clever tweet.

P.S. If you want to put a human face on the horror of civil asset forfeiture, check out the horrible abuse that the Dehko family experienced. Or the mistreatment of Carole Hinders. Or the ransacking of Joseph Rivers. Or the brutalization of Thomas Williams.

P.P.S. And think about the fact that the first two administrators of the federal government’s asset forfeiture program now want it to be repealed.

I wrote two days ago about a jury correctly voting to acquit a Swiss banker who was being prosecuted (and persecuted) by the government. The jury presumably recognized that it’s not the responsibility of foreign national living in outside the U.S. to enforce our bad tax law.

My support for that jury has nothing to do with my admiration for Switzerland, my support for financial privacy, or my opposition to excessive taxation.

Instead, I was motivated by the principle that borders should limit the power and reach of government. And this principle is a two-way street. I also don’t want foreign governments to have carte blanche to impose their laws inside the United States.

I’m impressed that ordinary jurors apparently understood that principle better than policy makers in Washington.

But that’s not the only evidence for the wisdom of jurors.

Here’s another report on jury nullification in action.

A jury delivered an extraordinary blow to the government in a long-running battle over the use of public lands when it acquitted all seven defendants involved in the armed occupation of a national wildlife refuge in rural southeastern Oregon. …The Portland jury acquitted Bundy, his brother Ryan Bundy and five others of conspiring to impede federal workers from their jobs at the Malheur National Wildlife Refuge, 300 miles southeast of Portland. …Even attorneys for the defendants were surprised by the acquittals. …Federal prosecutors took two weeks to present their case, finishing with a display of more than 30 guns seized after the standoff.

But that was just the start because another trial was scheduled for Nevada.

U.S. District Judge Anna Brown said she could not release Bundy because he still faces charges in Nevada stemming from an armed standoff at his father Cliven Bundy’s ranch two years ago. …Daniel Hill, attorney for Ammon Bundy in the Nevada case, said he believed the acquittal in Oregon bodes well for his client and the other defendants facing felony weapon, conspiracy and other charges.

And what happened at that second trial?

Hold off on that question for a moment, bucause some of Bundy’s allies were given their day in court. The Las Vegas Sun reported on another outbreak of jury nullification.

A federal jury in Las Vegas refused Tuesday to convict four defendants who were retried on accusations that they threatened and assaulted federal agents by wielding assault weapons in a 2014 confrontation to stop a cattle roundup near the Nevada ranch of states’ rights figure Cliven Bundy. In a stunning setback to federal prosecutors planning to try the Bundy family patriarch and two adult sons later this year, the jury acquitted Ricky Lovelien and Steven Stewart of all 10 charges, and delivered not-guilty findings on most charges against Scott Drexler and Eric Parker. …”Random people off the streets, these jurors, they told the government again that we’re not going to put up with tyranny,” said a John Lamb, a Montana resident who attended almost all the five weeks of trial, which began with jury selection July 10. …The current jury deliberated four full days after more than 20 days of testimony.

So how did the government respond?

The second Bundy trial won’t even take place. As David French explained in a column for National Review, an Obama appointee threw out the case, thus saving a jury from another chance for nullification.

…a federal judge, Obama appointee Gloria Navarro, dismissed the federal government’s criminal case against Bundy and two of his sons on the basis that the government was guilty of “flagrant misconduct” in the trial. Its conduct was so “outrageous” that “no lesser remedy” than dismissal with prejudice “is sufficient.”

And why did the Judge make that decision?

In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage. …The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes? Bundy’s case teaches a number of valuable lessons. We cannot presume the government’s virtue. Sometimes even wild tales are true. And every American — from the angriest antifa activist to the leader of “Y’all Qaeda” — is entitled to the full protection of the United States Constitution.

Jim Bovard, in a column for USA Today, opines on the broader implications.

…federal judge Gloria Navarro declared a mistrial in the case against Nevada rancher Cliven Bundy and others after prosecutors were caught withholding massive amounts of evidence undermining federal charges. This is the latest in a long series of federal law enforcement debacles that have spurred vast distrust of Washington. …The Bundys have long claimed the feds were on a vendetta against them, and 3,300 pages of documents the Justice Department wrongfully concealed from their lawyers provides smoking guns that buttress their case. …In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. …Until the feds cease wrongfully abusing their targets, there will be no rebound in trust in Washington. If the Trump administration cannot rein in renegade federal prosecutors, the president should cease-and-desist any and all claptrap about “draining the swamp.”

In other words, so long as there are some bad apples in the world of law enforcement (and, more broadly, in positions of power in government), jury nullification is a bulwark against abuse by the state.

Incidentally, I’m not implying Bundy and his pals are heroes. Yes, they’ve been mistreated, but they also seem to think they have a right to treat government land as their land. Which is why I think the real solution is privatization of the excessive government holdings of land.

Let’s now zoom out and look at three good pieces about jury nullification in Reason, starting with a column by J.D. Tuccille.

…jury nullification—acquittals of defendants who jurors believe did violate the law but don’t deserve punishment, either because of specifics of the case or because jurors oppose the law in question—isn’t always obvious. …But, as with much of what jurors do, nullification is important and potentially powerful. …Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges, …Jurors who go about their business without revealing their motivations are immune to punishment, so keeping your mouth shut is just smart, even if it leaves the rest of us in the dark.

He provides an example of a jury slapping down an absurd prosecution.

…it’s more common to see cases like the rapid acquittal of an Ohio machinist who was arrested for making what Bureau of Alcohol, Tobacco, Firearms, and Explosives agents claimed were firearms noise suppressors (so-called “silencers”) without a license. …He claimed his products were actually unregulated muzzle brakes and that the government’s “expert” had no idea what he was talking about. Whether the jury believed the machinist, or whether they thought it was ridiculous to threaten a man with producing items that can easily be made on a home workbench and that lawmakers at the state and federal level are considering deregulating, is something we’ll probably never know. …Either way, they likely concluded that they were carrying out their responsibility to do justice and protect defendants from government overreach. Because, ultimately, jury nullification is just an extension of the jury’s role as a check on the state—whether prosecutors are applying law badly, or just applying bad law.

It’s not surprising to learn that the government does not like jury nullification.

But what is shocking is that the state is willing to imprison people for exercising their rights to free speech by informing potential jurors about nullification.

Here’s some of what Jacob Sullum wrote.

…a Michigan judge sentenced a local activist to eight weekends in jail, plus $545 in fines, 120 hours of community service, and six months of probation, for passing out jury nullification pamphlets in front of the Mecosta County courthouse. Keith Wood, a former pastor and father of eight, was arrested in November 2015 and convicted last month of jury tampering, a misdemeanor punishable by up to a year in jail. …Wood’s lawyer, David Kallman, who plans to appeal the conviction, argued that distributing the pamphlets, which contained general information about jurors’ rights, was protected by the First Amendment. He emphasized that Wood never discussed Yoder’s case with passers-by at the courthouse. …After Wood’s arrest, Mecosta County Prosecutor Brian Thiede said the FIJA pamphlet is dangerous because “we would have a lawless nation if people were to vote their conscience.”

The last sentence is the key. Notwithstanding the fevered statement of Mr. Thiede, we would not have a “lawless nation.” Jurors have no problem convicting those who assault, harm, kill, steal, and rape.

Nullification is a check on bad laws and/or bad actions by government. And that’s a good thing.

Let’s close with another piece by Tuccille, which has two very encouraging examples. We’ll start in Texas.

…El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he’s no fan of drug legalization, Allen says it’s a waste of his officers’ time to put hours into an “an arrest that has no end result of a conviction because of jury nullification.” This is only the latest evidence that rebellious jurors are putting limits on how badly government officials can treat the rest of us. …”Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage,” wrote Rice University’s Prof. William Martin… But jurors are…doing just that often enough that the El Paso Police Chief sees no point to making arrests that have “no end result of a conviction because of jury nullification.”

And finish with Georgia.

In Laurens County, Antonio Willis faced up to five years in prison for selling the equivalent of a few joints to an undercover cop. The cop, “who switched into an exaggerated Hispanic accent straight out of Cheech and Chong when dealing with suspects,” according to Bill Torpy of the Atlanta Journal-Constitution, kept pestering Willis for drugs while promising to hook the unemployed man up with a construction job. …the jury acquitted after just 18 minutes of deliberations. “A jury in Middle Georgia returned a Not Guilty verdict in a marijuana sale case despite the evidence,” retired sheriff’s deputy Tom McCain, now executive director of Peachtree NORML, approvingly commented after the trial. “The verdict can be nothing other than Jury Nullification.”

The moral of the story is not that jury nullification is a great thing. It’s only a second-best solution to the real problem of bad laws (exacerbated occasionally by bad prosecutors or bad cops).

But so long as bad laws (or incomprehensible laws) exist and government officials sometimes act dishonorably, we should support juries being the last line of defense for persecuted citizens. Remember, a tough-on-crime policy is only good if laws are just.

It’s been several weeks since the awful tragedy in Parkland, FL, where 17 students were killed by an evil loser. Since I written several times about the utter impracticality of gun control, and since a growing number of honest liberals (see here, here, here, and here) also acknowledge that such laws are ill-advised, I didn’t think another column would be necessary.

However, the controversy isn’t going away. Left-wing groups are using some of the students as props in a campaign to push restrictions on private gun ownership.

So I decided to take part in a four-person debate on the issue for France 24. Needless to say, I was the only pro-Second Amendment person on the show (it was 4-1 against me if you include the moderator). You can watch the entire 45 minutes by clicking here, but you can get a good idea of the one-sided nature by simply watching this excerpt from the introduction.

Here’s the first question I fielded, which gave me a chance to knock our unprincipled President.

But more importantly, I noted that gun control doesn’t succeed because ordinary Americans are very diligent about protecting their constitutional rights.

This next segment gave me an opportunity to make several points.

• The silliness of banning “scary looking” rifles when there are hundreds of millions of other weapons that work the same way.
• Democrats have rallied behind truly radical legislation targeting all semi-automatic weapons (knowing that non-gun people don’t know what that term means, I used “non-revolver” as a synonym, but I admit that probably isn’t any better).
• Gun bans are especially absurd in a world with 3D printers.
• Censorship would probably be effective in reducing mass shooters, but I don’t want to repeal the First Amendment.
• Rising levels of gun ownership are correlated with lower levels of crime.

By the way, none of the other guests ever tried to refute any of my points. Check the full video if you doubt me.

I also was asked about private companies restricting gun sales.

And since I believe in freedom of association, I said that was their right, even if such steps are both futile and bad for business.

In my final segment, I noted the good news that states are liberalizing gun laws, while also pointing out that global evidence also shows why gun control is a bad idea.

And you’ll notice I took another shot at our unprincipled president. Our Constitution is not a pick-and-choose document.

So what’s the practical impact of all this?

Gun-control proposals generally fall into two categories. Some politicians go after the “military-style” weapons, which is empty posturing that will no (positive) impact on crime. I wrote about this issue in the past, and you can click here and here for added info on the failed 1994 ban.

Or they go for sweeping gun bans and confiscation. Which, if ever enacted, would lead to widespread civil disobedience.

So we know that’s not the answer.

But what is the right approach? As I noted in the interview, there probably is no complete solution.

That being said, let’s dig into the issue of whether teachers and other school personnel should be allowed to carry concealed weapons are a last line of defense of nutjobs.

Here’s  story on the issue from Kentucky.

Teachers could soon be carrying concealed guns inside schools in Pike County under a proposal that was preliminarily approved Monday evening by the Pike County School Board. The unanimous decision…was prompted by multiple school shootings in recent weeks… Schools Superintendent Reed Adkins said he hopes the board will give final approval within two to three weeks, and to have armed staff in schools by fall, if not sooner. …State Sen. John Schickel, R- Union, has introduced Senate Resolution 172 that would urge boards of education to allow teachers and other school personnel to carry firearms for their own protection. …Multiple mothers of Pike County students urged quick action Monday to provide schools with some type of security, saying their children have been scared to attend school.

And we also have a news report from Colorado.

One of the first school districts in the state of Colorado to implement such a policy was in eastern El Paso County… A decision made in hopes of preventing another school shooting here at home and more than a year later, most people are grateful this was put into place. “Our school’s pretty much a model for school safety,” Terry Siewiyumptewa, a parent said. …”Our staff members, it could be 100 percent, are armed and are here to protect and keep our students safe,” Dr. Grant Schmidt, Superintendent for Hanover School District 28 said. Now, teachers, administrators, custodians and even bus drivers can all volunteer to conceal carry in school… “We need safe schools and our school is providing us what we’ve asked for,” Siewiyumptewa said. …”The only way to stop a bad guy with a gun, is a good guy with a gun,” she said. …Students we spoke with say it has added an extra level of comfort. …Dr. Schmidt says he’s been getting calls from other school districts across the country all year, wanting to know how they put this into place, asking for guidance, research and other documents to use as a model.

Unsurprisingly, Texas is another example.

Amazingly, there is an outpost of common sense in California.

One California school district has voted to allow staff members to carry guns on campus. The district says the policy was put in place to ensure the safety of students in case there is an active shooter situation. …Kingsburg High School District, near Fresno, is just the second district in the state to allow concealed weapons at school buildings.

Even the New York Times has noticed this growing trend.

For all the outcry, though, hundreds of school districts across the country, most of them small and rural, already have. Officials…do not see the weaponry scattered through their schools as a political statement, but as a practical response to a potent threat. …At least 10 states allow staff members to possess or have access to a firearm on school grounds, according to an analysis by the Education Commission of the States. And local districts have varied their approach to arming educators — in Ohio, guns are kept in safes; in Texas, they can be worn in holsters or kept in safes within immediate reach. …In Texas, some public school systems have been quietly arming teachers and administrators for more than a decade.

This part of the story is very powerful.

Sidney City Schools was shaken by the slaughter of 20 first graders and six staff members at Sandy Hook in 2012. In the following days, Sheriff Lenhart presented Mr. Scheu with an equation: Every 17 seconds after the first shots are fired and the first 911 call is made, somebody gets hurt or dies. “Even in the best-case scenario, we could get here in four to five minutes,” Sheriff Lenhart said. “You do the math.” …Sheriff Lenhart…led what he calls a “layered” approach to school security and a “conservative” approach to arming teachers in the 3,400-student school district. The district spent about $70,000 on safes, bulletproof vests, cameras, guns, radios and ammunition…negligible costs for a school district with a $36 million budget… there’s a secret group of 40 educators — teachers, principals, custodians, secretaries — called a “first responder team” that can retrieve firearms in under a minute.

Bureaucrats weren’t happy about this development, but guess who is pleased?

The measures here met some opposition at first, from the town’s teachers union and police chief, who were concerned about gun safety. …Nicki New, the parent of three students in Sidney City Schools, said she felt safer dropping off her children knowing there were staff members equipped to respond to a parent’s worst nightmare.

Does that guarantee safety? Nope. Is it possible a teacher might shoot an innocent person in the stress and chaos of an active-shooter situation? Yup. There are no sure-fire, cost-free solutions to this horrible problem. It’s all about the policies that will improve the odds of good outcomes and reduce the likelihood of bad outcomes.

But here’s my bottom line. If my kids were still young and some miserable excuse for a human being came into one of their schools and started shooting, there’s no question that I would want some of the teachers to be armed.

Moreover, ask yourself whether a nutjob shooter is more likely or less likely to target a school with armed teachers. Like other mass shooters, they almost universally wreak their havoc in so-called gun-free zones.

Why? Because they know that simply means there are no good people with guns who can fight back.

I’ll close with one final observation. Teacher unions are controlled by leftist ideologues and claim that it’s a bad idea to allow armed teachers. They’re wrong, but the really preposterous part of their argument is that teachers shouldn’t be forced to carry guns.

But nobody is suggesting that. Instead, it’s an option for teachers who are prefer fighting to cowering in a corner waiting to be shot.

And lots of teachers don’t like the latter option, as indicated by this story in the Washington Examiner.

A sheriff in Ohio has already started the process of training school personnel on how to carry a concealed weapon, and predicted on Friday that hundreds would soon be trained and ready. …”While our gov still debates what 2 do we will have trained over 100 school personnel by Saturday,” he added. …Sheriff Jones said his offer to train teachers has been met with an overwhelming response. On Tuesday, he said he cut off requests at 300.

Makes me proud of America’s teachers. Their union stinks, but three cheers for the rank and file.

P.S. Since I’m a fiscal wonk, I rarely get to publicly pontificate on gun rights. Here’s my only other interview on the topic.

I have a special page to highlight honest left wingers, and I’ve acknowledged several who have confessed that gun control is misguided.

• Jeffrey Goldberg admits gun ownership reduces crime.
• Justin Cronin explains how he became a left-wing supporter of gun rights.
• Jamelle Bouie pours cold water on Obama’s gun control agenda.
• Leah Libresco confesses that gun control simply doesn’t work.

A columnist for Vox also is honest. Dylan Matthews starts by acknowledging that the standard agenda of the anti-gun movement is pointless.

Congress’s decision not to pass background checks is not what’s keeping the US from European gun violence levels. The expiration of the assault weapons ban is not behind the gap.

But don’t get your hopes up that Matthews is on the right side.

His problem with the incremental ideas is that they don’t go far enough.

What’s behind the gap, plenty of research indicates, is that Americans have more guns. …Realistically, a gun control plan that has any hope of getting us down to European levels of violence is going to mean taking a huge number of guns away from a huge number of gun owners. …And here’s the truth: Even the most ardent gun control advocates aren’t pushing measures that could close the gap. Not even close. …Obama’s plan to tackle gun violence focused on universal background checks for gun sales, banning assault weapons again, and increasing criminal penalties for illicit gun traffickers. That’s nowhere near as dramatic as taking…America’s guns off the street.

I obviously disagree, but I give him credit for honesty. Unlike other leftists who privately share the same ideology, Matthews is open and honest about his desire to eviscerate civil liberties.

Even if he understands it’s not going to happen any time soon.

…large-scale confiscation look like easily the most promising approach… Large-scale confiscation is not going to happen. That’s no reason to stop advocating it.

So I applaud Matthews for not hiding his true desire. Just like I applaud leftists who openly admit that they want 90 percent tax rates or who freely confess that they think all our income belongs to government.

I think they’re all profoundly misguided, but that’s a separate issue.

Now let’s briefly contemplate what would be necessary for Mr. Matthews to get his wish of total gun confiscation.

Reason produced a mocking “five-step” video on the near-impossible actions that would be needed to achieve that goal.

But the first three steps in that video were about how difficult it is to amend the Constitution and I don’t think that’s what the left has in mind. If they ever get to the point of trying to ban guns, presumably it will be after a leftist President has put a sufficient number of doctrinaire Ruth Bader Ginsburg clones on he Supreme Court. In which case, they will simply pretend the 2nd Amendment doesn’t say what it says.

And if that happens, then presumably it will be easy to envision the fourth step, which is legislation prohibiting private ownership of firearms. After all, does anybody doubt that this is what Chuck Schumer and Nancy Pelosi actually would prefer?

But I fully agree that the fifth and final step – actually confiscating guns – would be extremely difficult.

There was a poll on this issue back in 2013 and it’s worth noting that respondents, by a 3-1 margin, said they would defy such a law.

I oscillate between being proud about the result and being disappointed that the margin isn’t 10-1 in favor of defiance.

Regardless, the takeaway from this result is that there would be pervasive and ubiquitous civil disobedience.

Moreover, it goes without saying that the people who obeyed such a fascist law would not be the criminals. So the net effect of such legislation would be an unfortunate shift in the ratio of good gun owners and bad gun owners.

P.S. Which is sort of the point of this satirical comparison between Chicago and Houston.

I shared some satire about gun control last month, but the left’s campaign to exploit the horrible Parkland shooting seems to have instigated a bunch of new material.

So let’s have some weekend fun.

We’ll start with this humorous image from Reddit‘s libertarian page that actually does a good job of showing that gun control is pointless because criminals don’t care about laws.

This next image, also from Reddit, resonates with me because I’ve had many conversations with leftists who genuinely think a “semi-automatic rifle” is the same as a machine gun.

Or that “assault weapons” are somehow more lethal hunting rifles.

Though the gun-control crowd doesn’t seem to care even when you point out that their talking points are nonsense.

This next image arrived in my inbox a few days ago. I imagine the women calling the cops also failed this IQ test.

Next we have an apparently genuine sign from one of the student protests against civil liberties. Astoundingly, this girl doesn’t realize that she has everything wrong. The White House is filled with armed personnel and her school is the gun-free zone.

And we know from this cartoon whether bad people prefer unarmed victims. I guess we’ll call the student Exhibit A in the case against government-run schools.

This next item isn’t humorous, but I’m including it solely because I hope it’s a true story rather than an urban legend. If anybody knows, please share details in the comments section.

I like this next item because libertarians seem to be the only ones who value both the 1st Amendment and 2nd Amendment.

Given how California has drifted so far to the left, this next joke my turn into reality at some point. Well, even they’re not that foolish, but I can’t help but hope it might happen.

Last but not least, this item from Reddit‘s libertarian page does make me wonder about my left-wing friends. They despise Trump, yet they want to citizens to be disarmed.

Wow. Reminds me of this image.

P.S. You can still cast a vote in the online poll to identify the most important reason to defend the Second Amendment.

I don’t own an AR-15. I’m not a “gun person,” whatever that means. I hardly ever shoot. And I never hunt.

But I’m nonetheless a big supporter of private gun ownership. In part, this is because I have a libertarian belief in civil liberties. In other words, my default assumption is that people should have freedom (the notion of “negative liberty“), whereas many folks on the left have a default assumption for that the state should determine what’s allowed.

I also support private gun ownership because I want a safer society. Criminals and other bad people are less likely to engage in mayhem if they know potential victims can defend themselves. And I also think that there’s a greater-than-zero chance that bad government policy eventually will lead to periodic breakdowns of civil society, in which case gun owners will be the last line of defense for law and order.

I’m sometimes asked, though, whether supporters of the 2nd Amendment are too rigid. Shouldn’t the NRA and other groups support proposals for “common-sense gun safety”?

Some of these gun-control ideas may even sound reasonable, but they all suffer from a common flaw. None of them would disarm criminals or reduce gun crime. And I’ve detected a very troubling pattern, namely that when you explain why these schemes won’t work, the knee-jerk response from the anti-gun crowd is that we then need greater levels of control. Indeed, if you press them on the issue, they’ll often admit that their real goal is gun confiscation.

Though most folks in leadership positions on the left are crafty enough that they try to hide this extreme view.

So that’s why – in a perverse way – I want to applaud John Paul Stevens, the former Supreme Court Justice, for his column in the New York Times that openly and explicitly argues for the repeal of the 2nd Amendment.

…demonstrators should…demand a repeal of the Second Amendment. …that amendment…is a relic of the 18th century. …to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option. …That simple but dramatic action would…eliminate the only legal rule that protects sellers of firearms in the United States.

The reason I’m semi-applauding Stevens is that he’s an honest leftist. He’s bluntly urging that we jettison part of the Bill of Rights.

Many – if not most – people on the left want that outcome. And a growing number of the are coming out of the pro-confiscation closet. In an article for Commentary, Noah Rothman links to several articles urging repeal of the 2nd Amendment.

They’re talking about repealing the Second Amendment. It started with former Supreme Court Justice John Paul Stevens and George Washington University Law Professor Jonathan Turley. …Turley and Stevens were joined this week by op-ed writers in the pages of Esquire and the Seattle Times. Democratic candidates for federal office have even enlisted in the ranksvvvvvvvv of those calling for an amendment to curtail the freedoms in the Bill of Rights. …anti-Second Amendment themes…have been expressed unashamedly for years, from liberal activists like Michael Moore to conservative opinion writers at the New York Times.  Those calling for the repeal of the right to bear arms today are only echoing similar calls made years ago in venues ranging from Rolling Stone, MSNBC, and Vanity Fair to the Jesuit publication America Magazine.

But others on the left prefer to hide their views on the issue.

Indeed, they even want to hide the views of their fellow travelers. Chris Cuomo, who has a show on MSNBC, preposterously asserted that nobody supports repeal of the 2nd Amendment.

It’s also worth noting that Justice Stevens got scolded by a gun-control advocate at the Washington Post.

One of the biggest threats to the recovery of the Democratic Party these days is overreach. …But rarely do we see such an unhelpful, untimely and fanciful idea as the one put forward by retired Supreme Court justice John Paul Stevens. …Stevens calls for a repeal of the Second Amendment. The move might as well be considered an in-kind contribution to the National Rifle Association, to Republicans’ efforts to keep the House and Senate in 2018, and to President Trump’s 2020 reelection bid. In one fell swoop, Stevens has lent credence to the talking point that the left really just wants to get rid of gun ownership. …This is exactly the kind of thing that motivates the right and signals to working-class swing voters that perhaps the Democratic Party and the political left doesn’t really get them.

The bottom line is that the left’s ultimate goal is gutting the 2nd Amendment. Not much doubt of that, even if some leftists are politically savvy enough to understand that their extremist policy is politically suicidal.

But let’s set aside the politics and look at the legal issues. There’s another reason why I’m perversely happy about the Stevens oped. Even though he was on the wrong side of the case, he effectively admits that the 2008 Heller decision enshrined and upheld the individual right to own firearms.

And the five Justices who out-voted Stevens made the right decision. I’m not a legal expert, so I’ll simply cite some people who are very competent to discuss the issue. Starting with what Damon Root wrote for Reason.

One problem with Stevens’ position is that he is dead wrong about the legal history. …For example, consider how the Second Amendment was treated in St. George Tucker’s 1803 View of the Constitution of the United States, which was the first extended analysis and commentary published about the Constitution. For generations of law students, lawyers, and judges, Tucker’s View served as a go-to con-law textbook. …He observed the debates over the ratification of the Constitution and the Bill of Rights as they happened. And he had no doubt that the Second Amendment secured an individual right of the “nonmilitary” type. “This may be considered as the true palladium of liberty,” Tucker wrote of the Second Amendment. “The right of self-defense is the first law of nature.” In other words, the Heller majority’s view of the Second Amendment is as old and venerable as the amendment itself.

Well stated.

Though the real hero of this story is probably Joyce Lee Malcolm, the scholar whose work was instrumental in producing the Heller decision. John Miller explains for National Review.

Malcolm looks nothing like a hardened veteran of the gun-control wars. Small, slender, and bookish, she’s a wisp of a woman who enjoys plunging into archives and sitting through panel discussions at academic conferences. Her favorite topic is 17th- and 18th-century Anglo-American history… She doesn’t belong to the National Rifle Association, nor does she hunt. …She is also the lady who saved the Second Amendment — a scholar whose work helped make possible the Supreme Court’s landmark Heller decision, which in 2008 recognized an individual right to possess a firearm.

Ms. Malcolm started as a traditional academic.

For her dissertation, she moved to Oxford and Cambridge, with children in tow. …Malcolm’s doctoral dissertation focused on King Charles I and the problem of loyalty in the 1640s… The Royal Historical Society published her first book.

But her subsequent research uncovered some fascinating insights about the right to keep and bear arms.

At a time when armies were marching around England, ordinary people became anxious about surrendering guns. Then, in 1689, the English Bill of Rights responded by granting Protestants the right to “have Arms for their Defence.” Malcolm wasn’t the first person to notice this, of course, but as an American who had studied political loyalty in England, she approached the topic from a fresh angle. “The English felt a need to put this in writing because the king had been disarming his political opponents,” she says. “This is the origin of our Second Amendment. It’s an individual right.” …Fellowships allowed her to pursue her interest in how the right to bear arms migrated across the ocean and took root in colonial America. “The subject hadn’t been done from the English side because it’s an American question, and American constitutional scholars didn’t know the English material very well,” she says. …The Second Amendment, she insisted, recognizes an individual right to gun ownership as an essential feature of limited government. In her book’s preface, she called this the “least understood of those liberties secured by Englishmen and bequeathed to their American colonists.”

And it turns out that careful scholarship can produce profound results.

…in 2008, came Heller, arguably the most important gun-rights case in U.S. history. A 5–4 decision written by Scalia and citing Malcolm three times, it swept away the claims of gun-control theorists and declared that Americans enjoy an individual right to gun ownership. “…it gave us this substantial right.” She remembers a thought from the day the Court ruled: “If I have done nothing else my whole life, I have accomplished something important.” …the right to bear arms will not be infringed — thanks in part to the pioneering scholarship of Joyce Lee Malcolm.

Let’s close with a video from Prager University, narrated by Eugene Volokh, a law professor at UCLA. He explains the legal and historical meaning of the 2nd Amendment.

In other words, the bottom line is that the Justice Stevens and other honest leftists are right. The 2nd Amendment would need to be repealed in order to impose meaningful gun control.

And I suppose it’s also worth mentioning that it won’t be easy to ban and confiscate guns if they ever succeeded in weakening the Bill of Rights. But hopefully we’ll never get to that stage.

Like many libertarians, I’ve always assumed that Thomas Jefferson was one of the best Founding Fathers.

He certainly was an advocate of liberty and I’ve cited him several times (see here, here, here, here, here, and here) over the years.

But maybe being quotable is not enough.

There’s a fascinating article in the latest issue of Cayman Financial Review that looks at the emergence of economic liberty in the Anglo-Saxon world and it makes a persuasive argument that Alexander Hamilton was a more effective advocate of free markets.

Written by a Washington-area economist who uses a nom de plume because of his position in government, the article starts by explaining that England’s Whig Revolution in the early 1700s helped create the conditions for astounding British prosperity. Notwithstanding resistance from the landed elites.

In England, the Whig Revolution was a series of events – the successful invasion of William  of Orange to dethrone James II in 1688, the selection of George I to succeed Queen Anne in 1714, and the selection of Robert Walpole as the first Prime Minister in 1721 – that created the Westminster parliamentary system… Most important, the Whig Revolution also created the institutional and legal framework that transformed England into a modern capitalist economy and sparked the Industrial Revolution. The adoption of Dutch commercial law, the creation of the Bank of England, and the circulation of its bank notes monetized the English economy. English courts abandoned the medieval “just price” doctrine, which let judges nullify contracts after the fact based on the concept that all goods and services had an objective value and any deviation from this just price should therefore be unlawful. …Traditional guilds collapsed. Entrepreneurs were free to create new firms, determine output and prices, borrow from banks, and issue stock. New manufacturing firms lured workers away from the estates of the landed gentry to rapidly growing English cities with wages paid in paper currency. …Rapid economic, political, and social change inevitably produced a reaction led by the arch-Tory Henry St. John, the First Viscount Bolingbroke. …To Bolingbroke, the Whig Revolution corrupted England… Bolingbroke rejected the legal and political reforms that created a modern capitalist economy. …But he failed to turn back the clock.

The same battle occurred on the other side of the ocean. albeit several decades later.

And most of America’s Founders apparently were not on the right side.

The Whig Revolution, which had allowed England to develop a modern capitalist economy, did not immediately cross the Atlantic. …In the 1770s, colonial legislatures still regulated the prices for many goods and services and forbade arbitrage and speculation. Colonial courts still accepted “just price” doctrine, allowing judges, all whom were members of a small oligarchy, to overturn contracts when market prices moved against colonial elites. And when crops failed or prices fell, colonial legislatures frequently declared “debt holidays” to prevent creditors from seizing the property of the colonial oligarchs. …Most of the America’s founders were from the small, wealthy elite in the colonies. Identifying with the English gentry rather than the rising middle class, Bolingbroke greatly influenced most of the founders’ views of economics and politics. Most founders, especially Thomas Jefferson and James Madison, agreed with Bolingbroke about the primacy of agriculture, shared his fears of banks and a paper currency, and dreaded industrialization. Most founders accepted Bolingbroke’s policy recommendations.

But Alexander Hamilton had a more enlightened outlook.

Alexander Hamilton was different than other founders. …Hamilton immigrated to America in 1773. Serving as General George Washington’s aide-de-camp, Hamilton observed how a weak Continental Congress imperiled the war effort. …Hamilton had a very different prospective from other founders with the notable exceptions of Washington and John Marshall. Hamilton wanted America to become a dynamic meritocracy. …Hamilton wanted poor, but talented individuals like himself to have avenues other than land ownership to earn wealth. Moreover, Hamilton rejected slavery because it prevented slaves from their full economic potential and made masters indolent and lazy. Moreover, Hamilton rejected racism. “The contempt we have been taught to entertain for the blacks, makes us fancy many things that are founded neither in reason nor experience.” During the Revolution, Hamilton proposed emancipating slaves that agreed to fight in Continental Army. Later Hamilton founded the New York Society for the Manumission of Slaves. Instead of Bolingbroke, Hamilton embraced the Whig Revolution and wanted to bring its economic benefits to the United States. …Moreover, Hamilton was staunch defender of property rights even when it was politically costly to him. As a lawyer in New York City, he successfully argued for the restoration of property of Englishmen and Loyalists that had been seized after the Revolutionary War in violation of the Treaty of Paris and the law of nations.

What about Hamilton’s protectionism?

He’s semi-guilty, but the author explains that Hamilton was mostly looking for a way of funding a modest-sized government.

And as I wrote last month, a modest tariff to fund a very small central government (as all the Founders preferred) would be a great improvement over what we have now.

Moreover, Hamilton even understood the basic principle of the Laffer Curve a couple of hundred years before Art Laffer’s famous napkin sketch.

While some future policymakers misused Hamilton to justify their protectionism, Hamilton was not a protectionist in the modern sense. …In a world in which income and value-added taxes had not been invented, …Hamilton favored a revenue tariff that averaged about 10 percent over a property tax to fund the federal government. Hamilton sought to maximize the federal government’s revenue and provide a modest margin of protection to domestic manufacturers rather than to block imports. Indeed, Hamilton argued: “It is a signal advantage of tax on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed – that is an extension of the revenue.”

I’m not fully convinced that Alexander Hamilton is a libertarian hero (that would entail support for free banking rather than his version of central banking), but I’m looking at him much more favorably after reading this article.

And I’m now significantly less sympathetic to Thomas Jefferson.

I’ll close on a wonky note. In my column about the would-be nation of Liberland, I cited some research on the relationship between “state capacity” and economic prosperity. The notion is that an economy won’t prosper unless a government is both strong enough and effective enough to deter aggression and to provide rule of law (while otherwise leaving the private sector unmolested).

I’m certainly no expert on the Founding Fathers, but it seems that Hamilton had that point of view.