BuckeyeBlog

On June 19^th, interim Ohio Attorney General Nancy H. Rogers praised the Supreme Court’s opinion in Indiana v. Edwards in a press release titled “U.S. Supreme Court Rules Mentally Incompetent Defendants Have No Right To Represent Themselves.”

Rogers’ tone is such that she believes denying constitutional rights to defendants is a good thing. The case establishes two different tiers of competency; a lower threshold that requires the defendant to be competent to stand trial, which generally means to be able to understand the charges against him and to assist his counsel, while the upper threshold requires a greater degree of competency, a level sufficient, in the eyes of the state, for the defendant to represent himself.

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Glenn Reynolds thinks the collective rights view is dead .

Sorry, professor, but you’re too credulous. While it might be true that no one put forth an explicit statement saying “collective rights is the wave of the future,” that’s precisely what this case is about. Even in a collective rights society, lip service will be paid to your individual dignity. Probably even more so than in an individual rights society; the need will be greater, since there won’t be any actual individual rights.

Indeed.

“Doctors have complained for years that Medicare payments have failed to cover rising costs.”

Apparently some fool built fiscal responsibility into the Medicare program. Formulas require a cut in payments whenever the budget is blown, which is, let’s see, every period it’s measured. Or so this article implies, anyway.

Then Congress rushes in, ever the hero, and takes firm action. It waives the fiscal responsibility requirement, so everyone can pretend there’s no problem.

As Father PJ says, if you think health care is expensive now, wait ’til it’s free.

Mike Maurer is right about the fact that follow-up litigation will be necessary to define the scope of the Second Amendment’s individual right to keep and bear arms. While Heller is a landmark case in that it recognizes the Second Amendment as protecting an individual right, it also is fairly limited, at least on its face, in its application. In the majority opinion, Justice Antonin Scalia writes that “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” In discussing regulations of the right to keep and bear arms that might be permissible, Scalia avoids speculating about them, writing “there will be time enough to expound upon the historical justifications” for such regulations “if and when those exceptions come before us.”

The ban struck down in Heller was a District of Columbia law. Another issue left undecided by Heller is whether the Second Amendment protects an individual’s right to keep and bear arms against state or local regulations similar to the DC law.

We may get answers to some of these questions sooner, rather than later, as lawsuits are planned challenging gun restrictions in Chicago and San Fransisco.

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling - and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”

One of the first things to do in looking at questions of revenue or expense is to forget the loose change and focus on the guts. (Of course there are also powerful arguments for looking at the margin, too, but one thing at a time.) When it comes to state of Ohio taxes, state revenue is basically half sales tax and half income tax.

So when legislators propose to eliminate the income tax, are they proposing to eliminate half of the state’s revenue? Some Ohio legislators seem to think so.

“Certainly there is going to have to be some replacement revenue for us to be able to move forward,” [said Rep. Jay Hottinger, R-Newark] . . .

Asked if it was really possible to eliminate the income tax, [Rep. Matt Dolan, R-Novelty] said, “Given the conditions today, no. But I think it’s very possible we could get Ohio competitive into a 3 to 3.5 percent range.”

This isn’t really the question. It’s all a matter of timing. Are proponents of eliminating the income tax proposing to cut 50 percent of state revenue tomorrow? Not very likely. While it’s true that they could double the sales tax and keep overall revenue the same immediately, a more likely approach would be to simply tighten up the growth belt.

Assume actual state spending grows 3 percent a year, not a bad estimate, given that the last two budget cycles have been historically low at something approaching 2 percent per year, not including about half of the state’s overall budget, which tends to grow faster. Assume that revenues grow at the same rate. The rule of 72 says that state expenditures will double in 24 years. All that would be required is to shift the growth in sales tax every year to a reduction in the income tax. Voila - the income tax is eliminated in 24 years, and sales tax rates haven’t changed.

The only thing that’s changed is that government shrank as a share of the overall economy. That’s a good thing, not a bad one. But even if one chooses the path of those who believe in government over individuals, the income tax could be eliminated by raising the sales tax rate gradually while reducing the income tax rate gradually. In that unhappy circumstance, government would hold the same share of economic activity, but at least that share wouldn’t grow, and again the income tax would be gone.

Whew. That was a close one.

Four justices of the United States Supreme Court are prepared to rule that there is such a thing as a collective right.

Good lord.

So proponents of individual freedom won out, by the thinnest of margins. Good on Justice Kennedy, the unreliable justice.

Good on the strategists who rolled the dice under tough circumstances and won (let’s forget how easily it could have gone the other way, and what a disaster that would have been, for gun rights and all rights).

An amusing footnote on reporter editorializing: These two paragraphs just don’t belong in the story.

The ruling came the day after a worker at a plastics plant in Henderson, Kentucky, used a handgun to shoot and kill five people inside the factory before killing himself, the latest in a series of deadly shooting sprees across the country.

The United States is estimated to have the world’s highest civilian gun ownership rate. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data.

Really, they ought to know better. If they want to argue for liberal concealed carry laws, so that victims such as these could protect themselves from assaults, they should write a column saying so. Sheesh.

The folks at the American Lung Association’s Ohio chapter are calling for an increase in taxes on tobacco products such as smokeless tobacco and cigars in order to fund their anti-tobacco efforts. This comes on the heels of the Governor and General Assembly de-funding the Ohio Tobacco Prevention Fund and using its money for “economic stimulus.”

But can increased taxes on these products be justified as anything other than anti-smoking activists looking for ways to keep their jobs? I discuss this issue in some detail in my study on Ohio’s Dumb Taxes. I also sum up the issue in this Viewpoint:

It is certainly fair that people should pay for the costs they impose on society. Tobacco users are already doing that, however. Studies indicate the burden smokers place on taxpayers could be oft-set by adding about 32 cents to a pack of cigarettes. Since Ohio taxes cigarettes at $1.25 a pack, the smokers of Ohio are paying for more than their fair share.

Cigars and smokeless tobacco products are also taxed heavily compared to the cost they impose on society. Illnesses from cigars and smokeless tobacco such as chewing tobacco cost taxpayers almost nothing. These products are just not as dangerous as cigarettes. Because of this, they should have no special taxes levied on them. Instead, they have an onerous ad valorem tax imposed by the state that taxes these products based on their price. This distorts the market and unfairly penalizes high-end products.

In short, tobacco users already reimburse the government for any costs imposed on state health systems. If activists were really interested in fairness, they would be pushing for a reduction in tobacco taxes.

Of course, fiscal fairness is probably only one part of the rationale to increase tobacco taxes. Many interest groups want to see taxes raised in order to discourage tobacco usage. It is an improper use of the tax code to try and affect social policy, though. Taxes should be levied to raise revenue for government obligations, not as a way to force people to act certain ways.

Besides being an improper use of the tax code, raising taxes on products to discourage their usage also has unintended consequences. Activists do not seem to realize that not all tobacco products are equally unhealthy. While all tobacco products pose some health risk, smoking cigars or using chewing tobacco causes far fewer health problems than smoking cigarettes. By raising the cost of these less dangerous products the anti-tobacco activists may well cause some people who used these products to satisfy their tobacco habit with cigarettes.

A lot of excitement on the gun rights side of the aisle today, as everyone who is invested in the issue expects the Supreme Court to rule on Heller. A mix of blogs, press reports and gossip suggests that Scalia will write an opinion that holds the Second Amendment protects an individual right rather than a collective right.

That’s a scary concept. There’s no such thing as a collective right. You have to go to the Soviet constitution or the United Nations for such a thing. A collective right is no right. Put it this way: If Ted Strickland or Bob Taft publishes a newspaper, does that satisfy your First Amendment right of free speech? Of course not. The idea is absurd, and it does not become less so by moving the concept from the First to the Second. Once allow that idea to take root in the Constitution on a right you don’t like, and sure as the sun you’ll find it applies to the rights you do like.

(I quizzed one “expert,” a professor and author of a book on the topic, to name another collective right in the Constitution, and he said “jury,” on the grounds that it takes a group of people to compose it. Talk about not clear on the concept. Another expert, also an author, one who knew what he was talking about, was stumped, for the valid reason that there isn’t any such thing.)

Outsourcing newspaper editing to India ? Geez, couldn’t we start with lawyers and government workers?