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“The NRA’s Worse Nightmare”: Gun-Rights Advocates Should Fear History Of Second Amendment

On Sunday, New York Sen. Chuck Schumer went on CBS’s Face The Nation and argued that people who support gun control “have to admit that there is a Second Amendment right to bear arms”.

Schumer’s effort to reach out to the gun-rights community may be well-intentioned, but it is also deeply ironic. If the nation truly embraced the Second Amendment as it was originally written and understood, it would be the NRA’s worst nightmare.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

It’s time for a history lesson about one of America’s most popular and least understood rights. It’s also long past time to expose the hollow, ignorant fawning over the Second Amendment by gun-rights advocates for what it is.

In contrast to the libertarian fantasies that drive the contemporary debate about firearms in America, the Founders understood that liberty without regulation leads not to freedom, but anarchy. They understood that an armed body of citizens easily becomes a mob. In other words, a bunch of guys grabbing their guns and waving a flag emblazoned with a rattlesnake is not a militia.

A cursory look at the history of the Second Amendment shows that regulation was a central part of its rationale—putting “well regulated” at the very start of the amendment was no accident. For instance, starting in the colonial period, states enacted a variety of “safe-storage” measures to deal with the danger posed by stored gunpowder. A 1786 law went as far as prohibiting the storage of a loaded gun in any building in Boston.

But many people who defend gun rights today are more than happy to skim over the first part of the amendment in their zeal to embrace the second. (The NRA itself literally chopped off that pesky first half when it chiseled the words on the face of its old headquarters.) As a result, our modern gun-rights ideology is often unmoored from any sense of corresponding civic obligation.

This ideology claims to rely heavily on the Second Amendment, and yet it is rooted not in the Founders’ vision, but in the insurrectionary ideas of Daniel Shays and those who rose up against the government of Massachusetts in 1786 and 1787. Indeed, there are gun-rights advocates today who think the Second Amendment actually gives them the right to take up arms against the government—but if that were true the Second Amendment would have repealed the Constitution’s treason clause, which defines treason as taking up arms against the government!

This is all so deeply twisted: after all, the Founders framed the Constitution in part as a response to the danger posed by Shays’ Rebellion.

As a result, our modern debate over gun rights has virtually nothing to with the Founders’ Second Amendment; that debate actually started about 30 years after the Amendment was adopted. What emerged was the notion that reasonable regulation was not inconsistent with the right to bear arms. In fact it was the only option in a heavily armed society.

Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment. All that changed when right-wing think tanks undertook a conscious effort to fund new scholarship to rewrite the amendment’s history. At first that effort was not well received, even in conservative circles. As late as 1991, former Supreme Court chief justice Warren Burger famously called the idea of an individual right to bear arms “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”

But the revisionism ultimately won over most of the legal establishment, reaching its zenith in 2008, when the Supreme Court broke with 70 years of established jurisprudence and affirmed that the Second Amendment protects an individual right to have guns in the home for reasons of self-defense.

In order to do this, the majority followed the lead of gun-rights advocates and essentially excised the first clause of the amendment—the “well-regulated militia” part—from the text.

(Let us pause briefly to note the irony that the opinion, District of Columbia v. Heller, was written by none other than Justice Antonin Scalia—America’s staunchest defender of originalism, or reading the Constitution according to its supposed original meaning.)

If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could.

Even leading conservative legal scholars have harshly criticized the ruling: federal judge Richard Posner said most professional historians reject Scalia’s historical analysis in the case, and described Scalia’s jurisprudence as “incoherent”. Perhaps even more damning, J. Harvie Wilkinson, a federal judge appointed by Ronald Reagan, compared Heller to Roe v. Wade.

Of course, the fact that the Second Amendment is now treated as an individual right has almost no bearing on gun regulation, because no right is absolute. You can’t shout “Fire!” in a crowded theater, nor can you fire a gun in one.

And most Americans—including those who own guns—are open to reasonable gun regulation. The only people who oppose such policies are the NRA, extreme gun-rights advocates, and the craven politicians who do their bidding.

But what would such regulation look like?

For one thing, we could have a comprehensive system of firearm licensing and registration. At the moment we have none (even though it is hard to fathom how one might ever muster a militia without such a system). To avoid the irrational fears of gun confiscation, such a system ought to be instituted by the states, which maintained militias long before the Second Amendment existed. Could anyone with even a minimal understanding of the history of the Second Amendment seriously maintain that a state-based system violated the Amendment’s text or spirit?

The bottom line is that although we hear the Second Amendment invoked all the time, few of those who trumpet it the most vehemently realize that restoring the Founders’ vision of the Second Amendment would be a call for more gun regulation, not less.


By: Saul Cornell, The Daily Beast, December 18, 2012

December 21, 2012 Posted by | Constitution, Guns | , , , , , , , | 2 Comments

“Unfit For Responsibility”: What Americans Should Learn From The “Republican Apocalypse”

What may finally consume the House Republicans is their boundless contempt for the American public – a contempt bluntly demonstrated in their refusal to consider any reasonable compromise with President Obama to avoid the so-called “fiscal cliff” on December 31. They know from the election results (and every poll) that the public believes taxes should be raised on the wealthy. They know that the public wants bipartisan compromise. And they know that the approval rating of the House Republicans, in contrast to the president’s upwardly trending numbers, are veering toward historic lows.

Moreover, they claim to believe that the major tax hikes and spending cuts that will occur on January 1, if negotiations, fail, will be ruinous for the American and perhaps the world economy. (And never mind that this concern validates Keynesian economics, flatly contradicting their professed ideology.) Failure to achieve a deal may result in a renewed recession or worse.

Yet the majority of Republican members adhere so blindly to their far-right ideology that on Thursday evening, they humiliated their own leadership by refusing to support Speaker John Boehner’s “Plan B” — and effectively scuttled negotiations between the House leadership and the White House. Boehner thought a bill to increase taxes only on households earning more than $1 million annually would pass the House, as Majority Leader Eric Cantor confidently announced. “We’re going to have the votes,” he said on Thursday afternoon. Several hours later the House leaders cancelled the roll call on the tax bill, admitting that they didn’t have the votes.

This embarrassing episode – the “Mayan Apocalypse” of the Republicans Party – demonstrates again why they are unfit for the responsibilities of national office.

They proved their unfitness the first time in the summer of 2011, when they held the national debt ceiling hostage, supposedly to reduce spending, and succeeded only in damaging both the nation’s credit rating and the economic recovery. Now they have declared their unwillingness to negotiate with a newly re-elected president, who won easily on the taxation issue. Although they held the majority, they actually lost seats and received fewer total votes than the House Democrats. But still they see no reason to deal with the president or acknowledge the national consensus.

Naturally, public anger at the Republicans is growing. But how furious would people feel if they fully understood this latest absurd episode on Capitol Hill? Boehner’s proposal was exceptionally generous to the wealthiest taxpayers – and mean to the poor and working families.

His Plan B would have extended the Bush tax cuts for their first million dollars of income; repealed a limit on tax deductions by the highest-income households; established a dividend tax rate of only 20 percent; and maintained an estate tax break for those same highest-income families worth an average $1.1 million. At the same time, according to the authoritative Center on Budget and Policy Priorities, Boehner’s bill would have ended various tax credits for low-income and middle-income families, costing them roughly $25 billion a year and driving millions of American children into poverty.

But awful as that proposal was, it was deemed too liberal by the dominant faction in the Republican caucus. They found it so offensively decent, so treasonously moderate, that they made fools of their own leaders and themselves rather than let negotiations continue. (Their spending bill was even worse.)

The president is fortunate in his opposition, whose obstinacy and extremism may yet prevent him from making a terrible deal to damage Social Security or Medicare when neither is necessary. He wanted to make deal – very badly – but there is nobody with the competence or sanity with whom to make a deal, not even a raw deal.

Now Obama must explain clearly what has happened. Perhaps then voters will begin to draw the obvious conclusion – that this country’s problems cannot be addressed, let alone solved, until they remove these Republicans from power.


By: Joe Conason, The National Memo, December 21, 2012

December 21, 2012 Posted by | Budget | , , , , , , , , | 1 Comment

“A Party Of Spineless Legislators”: John Boehner’s Failure And The GOP’s Disgrace

Remarkably, John Boehner couldn’t get enough House Republicans to vote in favor of his proposal to keep the Bush tax cuts in place on the first million dollars of everyone’s income and apply the old Clinton rates only to dollars over and above a million.

What? Even Grover Norquist blessed Boehner’s proposal, saying it wasn’t really a tax increase. Even Paul Ryan supported it.

What does Boehner’s failure tell us about the modern Republican party?

That it has become a party of hypocrisy masquerading as principled ideology. The GOP talks endlessly about the importance of reducing the budget deficit. But it isn’t even willing to raise revenues from the richest three-tenths of one percent of Americans to help with the task. We’re talking about 400,000 people, for crying out loud.

It has become a party that routinely shills for its super-wealthy patrons at a time in our nation’s history when the middle class is shrinking, the median wage is dropping, and the share of Americans in poverty is rising.

It has become a party of spineless legislators more afraid of facing primary challenges from right-wing kooks than of standing up for what’s right for America.

For all these reasons it has become irrelevant to the problems America faces.

The Republican Party is in the process of marginalizing itself out of existence. I am tempted to say good riddance, but that would be premature.


By: Robert Reich, Robert Reich Blog, December 20, 2012

December 21, 2012 Posted by | Budget | , , , , , , , , | 2 Comments

“The Republican Winter Carnival”: Will John Boehner’s Speakership Survive Until Plan C?

Has there been a House speaker in modern American history with less control over his members than John Boehner?

Over the past three days, Boehner has focused all attention on “Plan B”: an effort to strengthen his hand in negotiations with President Obama by passing backup legislation that would extend the Bush tax cuts for all income under $1 million.

Tonight, Boehner lost that vote. In a dramatic turn of events on the House floor, he pulled the legislation. In a statement released moments ago, he said, “The House did not take up the tax measure today because it did not have sufficient support from our members to pass.” Boehner lost.

Plan A, which was a deal with Obama, was put on ice, many believe, because Boehner couldn’t wrangle the votes to pass anything Obama would sign. Plan B failed because Boehner couldn’t wrangle the Republican votes to pass something Obama had sworn he wouldn’t sign.

The failure of Plan B proved something important: Boehner doesn’t have enough Republican support to pass any bill that increases taxes — even one meant to block a larger tax increase — without a significant number of Democrats. The House has now adjourned until after Christmas, but it’s clear now what Plan C is going to have to be: Boehner is going to need to accept the simple reality that if he’s to be a successful speaker, he’s going to need to begin passing legislation with Democratic votes.

There’s an asterisk there, though: It’s not entirely clear whether Boehner will be the speaker of the House a month from today. The vote to elect the next speaker is on Jan. 3. To win, you need an absolute majority of the House, not a plurality. Even a hopeless conservative challenge that attracts only a handful of Republican votes could deny Boehner the speakership until a consensus candidate emerged. Tonight’s vote makes that challenge more likely.

A significant number of Boehner’s members clearly don’t trust his strategic instincts, they don’t feel personally bound to support him, they clearly disagree with his belief that tax rates must rise as part of a deal, and they, along with many other Republicans, must be humiliated after the shenanigans on the House floor this evening. Worse, they know that Boehner knows he’ll need Democratic support to get a budget deal done. That means “a cave,” at least from the perspective of the conservative bloc, is certain. That, too, will make a change of leadership appealing.

If a conservative spoiler runs, he or she could very possibly deny Boehner the 218 votes he needs to become speaker, clearing the way for a more moderate candidate like Eric Cantor to unite the party. It’s hard to say exactly how likely that is. But it’s likelier than it was, say, this morning.


By: Ezra Klein, The Washington Post, December 20, 2012

December 21, 2012 Posted by | Budget | , , , , , , , , | 2 Comments

“Another Anti-Obamacare Headline”: Beware The Great Health Insurance Scam Of 2014

The anti-Obamacare world is atwitter over comments made last week by Aetna CEO, Mark Bertolini, who predicts that some insurance markets will “go up as much as much as 100 percent” when Obamacare takes hold in 2014—with the average increases running between 25 percent and 50 percent in the small group and individual segments of the business.

Mr. Bertolini has dubbed this phenomenon “premium shock”.

To be sure, this is a great headline for those who remain committed to defeating the Affordable Care Act with nothing better to suggest in its place. However, the facts reveal that Bertolini’s comments—while just maybe true for a very few participants buying coverage on the exchanges in the individual markets—are completely misleading with respect to the individual markets and likely completely untrue as applied to the small group market.

So, how is Mr. Bertolini arriving at his dire predictions?

Apparently, it’s all about (a) the new tax placed on health insurance company sales, (b) the community rating requirements that now prohibit older participants in a health insurance pool to be charged more than 3 times what is paid by younger members and (c) the new minimum standard of benefits that will need to be provided to those who purchase health coverage on the exchanges.

Pretty scary, yes?

The problem with Mr. Bertolini’s prediction is that it is completely and utterly at odds with not only the Congressional Budget Office (“CBO”) projections but with American Health Insurance Plans (AHIP) —the very lobbying organization that represents Aetna and was an active and hugely important supporter of Obamacare.

In 2009, the CBO projected that the Affordable Care Act will have little impact on small and large group policies. This is notable given the expectation that, by 2016, the small group market will represent 13 percent of the total insurance market while large groups will provide coverage for a full 70 percent of Americans with health insurance coverage. Do the math and you find that, according to the CBO, 83 percent of all covered Americans will experience little to no change in premium rates beyond normal increases that would occur had Obamacare never become the law of the land.

As for the individual markets, which will comprise 17 percent of the overall insurance market in 2016, premium rates are predicted to rise about 10 to 13 percent by 2016—considerably lower than the doubling Mr. Bertolini has suggested will take place in 2014.

What’s more, approximately half of those gaining coverage in the individual market will qualify for the government subsidies, thereby reducing the price of their insurance premiums below where they currently exist.

Of course, it is not uncommon for people to discount CBO projections and proclaim them to be biased when the projections fail to meet a desired political narrative.

So, let’s see what Aetna’s own trade association, AHIP, has to say.

A review of the AHIP website reveals that the sales tax imposed on the health insurance companies—and sure to be passed along to consumers—will account for a premium increase averaging 1.9 percent to 2.3 percent by 2014 and 2.8 percent to 3.7 percent by 2023.

Now, you may object to this potential increase—but it is a long way from the increases Mr. Bertolini is predicting.

On the subject of community rating—where insurance companies will now be prohibited from charging older participants in their health insurance pools as much as 10 times more than what they charge younger members even if the elder participants have no pre-existing health problems—AHIP indicates that limiting the rates for the older participants to only 3 times the rate charged the young will result in some younger insurance customers paying as much as 45 percent more in premium payments while older participants will pay 13 percent less.

No doubt, this is a large part of what Aetna’s Bertolini is relying on when trying to freak out the public.

The problem with Bertolini’s prediction is that even this large percentage increase, should it prove to be actuarially accurate, would not apply in the small and large group markets- it would apply only to a very limited number of people purchasing their health insurance on the exchanges who are (a) very young and (b) not qualified for subsidies.

The number is also misleading in its severity.

According to AHIP, the average premium paid by a 24 year old in the individual marketplace is $1200 a year. Using AHIP’s numbers, the price of making the cost of heath insurance more equitable for a 60 year old will potentially cost that 24 year old, on average, an extra $45 a month.

While I don’t mean to minimize this increase, as I recognize that every dollar counts when one is young and getting started, it is important to keep the actual price tag in perspective and weigh the equities when considering that those at the older age range have been overcharged for many years.

The reality is that the young have been paying unreasonably low premium rates for for a very long time—it being in the health insurance company’s profit interest to bring in as many young and healthy people as possible in the door by charging artificially low rates. The problem is that they make up for it by charging artificially high rates to the older people the insurance company would rather not have in the first place. What the ACA seeks to do is correct this situation so that 60 year olds are not precluded from gaining health insurance coverage by being priced out of the market.

Note that this problem could have been averted for younger Americans had we lowered the Medicare age to 55 however this was not acceptable to the Congressional GOP.

And that brings us to the topic of minimum benefits that must now be including in insurance policies offered on the health care exchanges, another area where large increases can be found in the effort to alarm the public.

According to AHIP, the additional costs attributable to health insurance companies actually having to provide a meaningful benefit ranges for as little as a tenth of a percentage point in Rhode Island to 33 percent in Maine where, apparently, health insurance policies do not provide much in the way of actual coverage. And, again, these numbers apply only to the individual marketplace on the exchange.

Thus, if you are one of the 8.5 percent of Americans who will be buying your coverage on the exchange in the state of Maine (making for a very, very tiny percentage) you may now have to pay more to actually get some health care coverage in exchange for what you pay.

So, what does all this tell us?

Gary Klaxon, Vice President of the Kaiser Family Foundation—one of the few health care think- tanks that just about everyone agrees is completely non-partisan and objective, had this to say about Mr. Bertolini’s predictions:

“That just seems silly. I can’t imagine anything going on in the small-group market that would change the average premium that much. On the individual market, there’s arguments for things changing, but those magnitudes seem high.”

Silly, indeed.

There is, of course, more to this than what the anti-Obamacare folks are choosing to report.

That would be the part where Bertolini noted in his ‘premium shock’ comments that this huge, one-time jump in premium rates to be expected in 2014 also includes increases in costs that would come even without the health care reform law.

Translation—health insurance companies have been trying to raise rates at a ridiculous pace ever since the word ‘Obamacare’ first entered the American lexicon, always seeking to blame these increases on the law even before the law became the law. So, when 2014 arrives, you can be certain that they will do everything in their power to grab as large an increase as they can get away with in order to preserve their profits.

Mr. Bertolini is merely laying the groundwork for that effort as Obamacare has provided the health insurance industry with a wonderful scapegoat, perfectly suited and even more perfectly timed to cover the inescapable truth of health insurance—it is a business model whose time has passed.

The sooner the American public realizes that private health insurance companies no longer work, the sooner we can get busy with the solutions that, while politically uncomfortable, can actually solve the nation’s health care challenges.

In the meantime, if you are a part of a large or small business health insurance group, there is no reason to expect that there should be significant—if any— increases in your premium charges in 2014. If you are an individual who will be shopping for health insurance on the exchanges, the 50 percent of you that will qualify for subsidies should experience premium costs at a lower rate than what you are currently paying, If you are in that other half, you may, indeed, see some increase in your rate—but nowhere near the ‘doubling’ the insurance industry would like you to believe is in your future.


By: Rick Ungar, Op-Ed Contributor, Forbes, December 20, 2012

December 21, 2012 Posted by | Health Care | , , , , , , , , | Leave a comment


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