It seems judicial activism is alive and well in Tennessee.  Though information is scarce, it appears that a judge has ruled unconstitutional a law recently enacted by the state which allowed guns to be legally carried in restaurants that serve alcohol.  The opinion was apparently issued from the bench and I haven’t yet been able to hunt down a written opinion or transcript, but if a news report is to be believed, the judge’s decision is a mess of illogic and policy driven judicial craftsmanship.

As I understand the background of the case, it arises out of the new Tennessee law which allows guns to be carried in restaurants which sell alcohol, but not in bars.  The law works by repealing most of an earlier provision that prohibited guns in any alcohol-serving establishment.  A group of permit holders challenged the law in court, seeking a declaration that the law is unconstitutionally vague.  The law is vague, they claim, because it fails to clearly distinguish between restaurants (where guns are allowed) and bars (where they are not).  The judge agreed and struck down the law, which, by my understanding, reverts everything to the pre-law conditions where guns are prohibited wherever alcohol is sold.

Examining the results of the case closely, it becomes apparent that the court’s decision, however the opinion was written, was an exercise of judicial policymaking.  In order to even be heard in court, the challengers would have needed to show that they were harmed by the vagueness of the law (or, if this is a declaratory judgment, that they are likely to be harmed by it).  The only way someone is harmed by vagueness in the law is if they violate the law unknowingly.  The only possible way to violate the law unknowingly is to carry a gun into a bar that they thought was a restaurant.

The court’s decision purports to solve this problem by (effectively) making it illegal to carry guns in restaurants.  But this is not a solution at all.  Under the court’s decision, it is still illegal to carry a gun into a bar that you think is a restaurant.  Nothing changes except that a great number of legal carries now become illegal carries, causing harm to the rights of restaurateurs and patrons who had no problem having guns at the table.

Assuming that the law truly is vague on this point, the court had two valid options available.

The first option is a variation on the option chosen by the court: Eliminate the distinction between restaurants and bars.  However, the distinction would need to be eliminated in favor of gun carriers, because that is the only way to remove the hazard of being caught with a gun in a bar that you thought was a restaurant.  This option eliminates the vagueness entirely, and solves the problem at hand.  The downside, however, is that it rewrites the law to produce a result, guns in bars, which was expressly rejected by the political process.  Though not the atrocity of the actual opinion, this choice would still have been activist.

The second option is effectively to punt: Dismiss the case and leave the law, as it is, intact.  Over time, courts will be called on to decide whether or not particular establishments are restaurants or bars, building a body of common law precedent in the absence of legislative definition.  This sort of case by case decision making is certainly not as clean as a proper definition from the legislature, but it is a common procedure undertaken by the courts which ultimately yields a workable standard.  Further, while true that some people will end up on the wrong side of uncertainty, the Rule of Lenity will generally protect these people from harm.

It is that final option which the court should have selected.  Instead, the court chose to deviate from the duly enacted will of the people in pursuit of an outcome which does not resolve any harm the law may have caused.  Such a decision is hard to reconcile with anything other than an apparent policy preference from a judge now translated into law.

Tags: 2nd Amendment, court opinions, logic

Over on the White House Blog today, Macon Phillips tells us about an interesting new service being offered by the federal government.  The services is introduced as such:

There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care.  These rumors often travel just below the surface via chain emails or through casual conversation.  Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to flag@whitehouse.gov.

Now, I know it doesn’t directly affect health insurance, but I, too, get a lot of disinformation about healthcare concerns in general.  Not a day goes by, it seems, where I’m not being introduced to a product or service that falsely promises to improve my level of health and wellbeing.  Most of this stuff comes in through my email, but I have also seen the lies show up on web forums I visit, on blogs I read, in conversations over instant messaging services, and even on television.

Of course, I tend to be fairly busy, and I assuredly don’t have time to read every lie that comes my way.  But, to my good fortune, I am, first and foremost, a child of technology.  A better life can come through software, and I have customized software systems to automatically sort most of these things out for me.  Perhaps the government will do the same.  But, if they are to really keep sharp on the latest information, then they must be prepared to do better than I do; to sit down, and actually read the things that we send.

Next time you see this disinformation, you might as well just send it along.  Though, you may want to create an anonymous email address first, certainly nothing that has your name.  But disinformation is disinformation, and the government clearly needs to care no matter who the mail is from.  They asked for it, after all.

So, why wait?  When it drops in your inbox, just go ahead!

Send them Viagra.

(Nothing in this post should be construed as recommending or encouraging the violation of applicable laws.  Indeed, the world is better off if you don’t.)

Tags: logic

According to the Associated Press, Senate Finance Committee Chairman Max Baucus has managed to find a way to make even less sense than Obama on the subject of healthcare.  Assuming that the AP article is an accurate reflection of what Senator Baucus actually said, he has just added another huge contradiction to the healthcare debate.

From the article:

A key Senate chairman says he hopes to convince President Barack Obama that taxing some employer-provided health benefits will help control escalating health care costs  … Baucus says the tax-free benefit packages Americans now enjoy are a big factor in the high costs of the country’s health care system, because they provide workers free or low-cost access to too many health care services.

So, according to Senator Baucus, a “big factor” which makes healthcare more expensive are “tax-free benefit packages … [that] provide workers with free or low cost access to … health care services.”  Put another way, healthcare costs so much because people don’t  have to spend a lot of money to get it.  Yet a third way, healthcare is expensive because it’s not.

Senator Baucus’s solution, which I guess is pretty obvious if you can swallow the contradiction above, is to tax private healthcare benefits.  The line of reasoning is certainly sound: Make healthcare more affordable by increasing the price.  Of course, with President Obama wrangling with care providers to knock costs lower, the only way to jack up the price is to do so artificially, with a tax.

Of course, it is possible that I misrepresented the Senator, and honesty demands that I address his “too many” straw man.  While some people certainly do behave this way, I know of very few people who seek out medical services that they do not actually need.  Indeed, part of the reason America’s emergency rooms are so full is the fact that most people don’t seek out medical services until they’ve long past needed them.  Even if you assume that people are overconsuming healthcare, are they doing so to the tune of offsetting nearly 46 million people who are not insured at all, and for whom President Obama wants to guarantee “free or low-cost” coverage?  And even if the answer is somehow, astonishingly, yes, exactly how is the government going to determine when a person has used “too many … services”?  And why wouldn’t private insurers do the same thing if they could?

The string of illogic given to us by Senator Baucus is only reconcilable with the proposition that he wants to end private insurance without saying so.  If President Obama goes back on his campaign rhetoric mocking McCain for supposedly having similar ambitions, it will be proof even stronger that his goals are the same.

Perhaps we should have given honest debate a health insurance plan ages ago.

Tags: economics, healthcare, logic, taxes

I came across a video today of part of a press conference given a couple of days ago by Obama regarding the stimulus bill currently working its way through Congress.  While I am certainly no fan of nearly anything he had to say and I continue to believe that the American Recovery and Reinvestment Act needs to be euthanized as quickly as possible, what caught me as most interesting were some of the specific arguments Obama made to justify the scope and character of the bill.  I was stunned that people would applaud arguments which effectively amount to saying that past excesses which Obama could not control justify the present excesses which Obama quite possibly can, particularly with those arguments coming from the man who has not been shy about telling us that he was elected on the winds of change.

httpv://www.youtube.com/watch?v=EJDwbfbpRnQ

When they say, “Well why are we spending $800 billion, we have this huge deficit,” first of all, I found this deficit when I showed up, number one.  I found this national debt doubled, wrapped in a big ball waiting for me when I walked into the Oval Office.

In this, Obama points out that the country does hold a rather large debt burden for which he became responsible on Election Day.  The tenor of his line and the response that he gets from the crowd show clearly that what he just said was meant to be a negative statement and a dig at Bush.  The negativity of this line is confirmed on Obama’s website which cites “Increasing Debt” as being a “Problem” which he campaigned to address.  I am uncertain how complaining about a doubling of the national debt under eight years of Bush can support an additional 9% increase in Obama’s first month.

Then there’s the argument, “Well, this is full of pet projects.” When was the last time that we saw a bill of this magnitude without earmarks in it? Not one.

So too here does Obama cite prior bad practices to justify another round of more of the same.  It is difficult at this point to recall any recent bill which hasn’t had earmarks of some sort attached to it.  This has, of course, been cited as a problem by pretty much everyone; Bush, Pelosi, McCain, and Obama have all said at various points that all of the earmark spending is ridiculous.  Yet, here the charge that this bill has gathered too many earmarks is basically dismissed as being the product of people who do not know how things work in Washington.  It’s what always happens, so why should it be a problem now?

Although I suppose that it technically qualifies, I don’t normally consider doubling down to be much of a sign of change.  I grow tired of hearing people defend the same exact things they previously denounced simply because it is a Democrat rather than a Republican who happens to be in charge.  But to hear past misbehavior used to justify current misdeeds is folly of the highest order.

Tags: Barack Obama, logic, spending