gun bans

Senate Committee Rubberstamps Left-Wing Ideologue to Head Powerful OSHA Agency Despite His Anti-Gun and Pro-Junk-Science Views

by Hans Bader on November 18, 2009 · 2 comments

in Employment, Health and Illness, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony

David Michaels, a left-wing ideologue who supports junk science and seeks to restrict gun possession, has been approved by the Senate Health Committee to head the federal Occupational Safety and Health Administration (OSHA). Only two committee members, both Republicans, voted against Michaels.

The vote occurred with no discussion, and no hearing was even held on his nomination, although hearings have consistently been held on OSHA nominees in the past, even for far less controversial picks.

Lawyer and Second Amendment expert, David Kopel explains how Michaels wants to ban guns in and near workplaces, and could use his position at OSHA to do so, if the political climate shifts in favor of gun control. (Some businessmen in high-crime areas possess guns to protect themselves against armed robbers, and even strict local gun-control laws have generally contained exceptions to allow such businesses to defend themselves.)

The fact that such bans might undermine, rather than enhance, workplace safety would not deter Michaels, who would be happy to rely on junk science.   Michaels wants to reverse the Supreme Court’s Daubert decision limiting the use of junk science.

As the Washington Times noted, “Mr. Michaels also is an anti-gun zealot who has described ‘gun violence’ as an issue of ‘public health’ that ‘invariably demands more and stronger regulation, not less.’ As Walter Olson of the Manhattan Institute explained, by way of warning, on Aug. 15: ‘That’s by no means irrelevant to the agenda of an agency like OSHA, because once you start viewing private gun ownership as a public health menace, it begins to seem logical to use the powers of government to urge or even require employers to forbid workers from possessing guns on company premises, up to and including parking lots, ostensibly for the protection of co-workers. In addition, OSHA has authority to regulate the working conditions of various job categories associated with firearms use (security guards, hunting guides, etc.) and could in that capacity do much to bring grief to Second Amendment values.’”

As I noted in a New York Times story, Michaels’ appointment could “dramatically alter OSHA’s approach to ensuring workplace safety.” Michaels has been called “one the nation’s foremost proponents of allowing junk science to be used in jackpot-justice lawsuits.”

Many business groups raised concerns about his nomination and extreme views.

Iain Murray notes that Michaels seeks to ban useful products from the workplace based on imaginary risks. One newspaper calls Michaels “virulently anti-business.”

The lopsided committee vote in favor of Michaels is probably explained by log-rolling.  As The Wall Street Journal has noted, some Republican committee members likely voted along with their Democratic colleagues to approve Michaels, in exchange for Obama’s recent nomination of an aide to the ranking Republican committee member, to sit on the board of an independent agency that is supposed to be bipartisan (the NLRB), but which Obama could conceivably have made even more partisan and liberal than it is by nominating a liberal RINO rather than a GOP aide to that post (that might have invited a filibuster, but there are only 40 Republican Senators, and it takes 41 votes to successfully filibuster a nomination).

Supreme Court to Decide Whether Second Amendment Forbids State and Local Gun Bans

by Hans Bader on October 1, 2009

in Legal, Personal Liberty

The Supreme Court has agreed to review a lower court ruling upholding Chicago’s handgun ban.   In 2008, the Supreme Court, in a 5-to-4 vote, struck down Washington, D.C.’s handgun ban.  But the Seventh Circuit Court of Appeals refused to apply that ruling to Chicago’s handgun ban, saying that the Second Amendment only applies against the federal government, not state and local governments like Chicago.  A decision in McDonald v. Chicago is expected some time next year.

The idea that the Second Amendment only applies against the federal government, not state and local governments, is a relic of the Cruikshank and Presser cases in the 19th Century, in which the Supreme Court stated that both the Bill of Rights in general, and the First and Second Amendments in particular, only apply against the federal government, not the states.  But by the 1930s, the Supreme Court had firmly rejected this rule under what is known as “incorporation,” under which the Due Process Clause of the 14th Amendment was read by the courts to incorporate against state governments almost all of the rights contained in the Bill of Rights, such as First Amendment rights, the right to private property, and the right to be free of cruel and unusual punishment.

The Seventh Circuit held that it was bound by the 19th Century decisions refusing to apply the Second Amendment against the states — never mind that that their reasoning, and related ruling that the First Amendment applies only against the federal government, have been rejected by many subsequent decisions specifically ruling that free speech, as a right guaranteed by the Bill of Rights, applies to state and local governments, too, through incorporation under the Due Process Clause.

Moreover, the Supreme Court’s 19th Century gun decisions weren’t even controlling, since they rejected a different argument than the one that the Chicago gun ban challengers recently made, as UCLA law professor Eugene Volokh notes.

The Supreme Court in those cases only addressed the argument that the Privileges and Immunities clause of the Fourteenth Amendment protects against state restrictions, not the argument that the Due Process Clause protects against states.  By contrast, the challengers to Chicago’s gun ban relied on the Due Process Clause, based on Supreme Court decisions after Presser holding that it incorporates against the states the guarantees of the Bill of Rights.

The Seventh Circuit’s using a Supreme Court case involving one argument to reject a different argument violated basic principles laid down by the Supreme Court itself.  The Supreme Court has warned that “cases cannot be read as foreclosing an argument that they never dealt with.”See Waters v. Churchill, 511 U.S. 661, 678 (1994).

The Supreme Court has emphasized this many times. See, e.g., Texas v. Cobb, 532 U.S. 162, 169 (2001) (“constitutional rights are not defined by inferences from opinions which did not address the question at issue”); Plaut v. Spendthrift Farm, 511 U.S. 211, 232 n.6 (1994) (“the unexplained silences of our decisions are not entitled to precedential weight”).

Thus, the Supreme Court should reverse the Seventh Circuit’s ruling in National Rifle Association v. City of Chicago, 567 F.3d 856 (7th Cir. 2009).