Free Markets, Free People

The “gun mandate”–any crazier than the “individual mandate” for health insurance?

No. 

A bill has been introduced in the South Dakota legislature that would require any adult over 21 to buy a gun “sufficient to provide for their ordinary self-defense.”

The hook – the purpose of the bill is to demonstrate that government shouldn’t be requiring anyone to buy health insurance.  Really.  Or so say the sponsors:

“Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

So now our liberal friends are free to tell us why requiring all the citizens of a state to buy a gun is bad and different than telling all citizens of the United States they have to buy health insurance.  If they believe in the power of the Commerce Clause to require citizens buy what the government demands they buy,  why not a gun?

~McQ

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26 Responses to The “gun mandate”–any crazier than the “individual mandate” for health insurance?

  • The State of South Dakota *can* require residents to buy guns.  The city of Kennesaw, GA already does.  Just like the state of Massachusetts *can* require residents to buy health insurance.
    If they’re trying to talk about Constitutionality, maybe they should begin with a primer on our federal system.
    The fact that these dolts, who so categorically misrepresent the difference between State and Federal power, were elected is either an indictment of the voters of South Dakota or of democracy in general.  Given that my home state of CA is so f’ed up, I’m gathering it’s the latter.

    • It *can* only if the state’s constitution says it can. Does it? Does it mandate such a requirment?

      • It doesn’t matter.  The lawmakers in question don’t appear to be making the argument that it is within the STATE’s rules whether or not mandating a gun is legal in the State.  I’ll admit that I haven’t researched the SD Constitution, so I’m not sure, but that’s neither my point nor that of the lawmakers in question.
        They are trying to make a point about the the US Constitution and the healthcare law, which is NOT a SD state matter, and is not in any way governed by the SD Constitution.
         
        If Tim Johnson or John Thune wanted to play this reductio ad absurdum game like this and put forth a bill in the US Senate claiming that all Americans over 21 must buy a firearm, it would be a logical attack on the Obamacare individual mandate.  But without even recognizing the State/Federal balance of power, the SD lawmakers in question are pulling a worthless and stupid political stunt.

        • It is a political stunt – they say it is. It’s about bringing attention to the absurdity of individual mandates at any level in a supposedly “free” country.

      • While I agree that this is (as the proponents themselves state!) a silly stunt, I think that question is misleading.
        The <I>State</i> Constitution need not mandate a requirement for it to be within the State’s powers; it must simply not forbid it.
        Unlike the Federal constitution, many State constitutions are <I>not</i> (sadly) in the form of limited government. I can’t find anything in a quick perusal of the SD Constitution that would prohibit the Legislature of South Dakota from making such a mandate.
        This is why a Constitutional requirement of limited government and enumerated powers is such a signal thing, and so rare … not even all the United States themselves have one.
        And of course all the Federal objections to such mandates (eg on healthcare) are based on the lack of an enumerated power to do such a thing.

  • Brad’s right — the States already have that general police power.  Plus, IIRC, the federal government has exercised such power in the past using it’s power to raise a military (as opposed to the CC power).

    It’s an interesting though experiment by SD, but not particularly analogous.

    • It can raise a military, but I can’t see how it can require that military to buy it’s own guns. The militia either. One does not necessarily lead to another.

      • From Section 8:

        To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

        To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

        The histiorical tradition is that the militia provided its own arms. Although the states/colonies/crown/feds might provide arms for those who could not afford them. Congress does have a say in the arming of the militia, as is explicitly mentioned in the Consititution (unlike health care, insurance, social security, etc).

        • Again, how is the requirement of the government for “arming the militia” a mandate to the individual that says he must buy a gun? Sounds to me like the government must buy him a gun if it calls him (as a member of the militia) to service. It may be a “historical tradition” that militas supply their own arms, but it isn’t a mandate, is it?

          • Again, how is the requirement of the government for “arming the militia” a mandate to the individual that says he must buy a gun

            The Militia Act of 1794.

          • And I assume the “militia act” mandates militia members arm themselves?

          • (Reply to McQ’s question below, lacking a reply button there.)
            I believe he means the Act of 1792, which reads in part thus: “That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt [... list continues a bit]“, text from here: http://www.constitution.org/mil/mil_act_1792.htm
            The logical argument here is that since the calling out of the militia is an enumerated power, and since the militia is useless without arms, the necessary and proper clause allows passing whatever laws are necessary (without violating other provisions) to make that work.
            There’s no (sadly?) Constitutional principle that you can’t make people pay for things themselves to fulfil such a requirement, at least to my knowledge.
            And of course under the modern militia act, every adult male is definitely in the militia, and one could extend that to women as well under equal protection.
            It’s actually legally arguable that (with perhaps hardship and religious exemptions) the Federal Government would actually be within its lawful Constitutional power to mandate that adults own firearms.

          • And if you can’t afford one or don’t want to carry one or … well you get the idea?

            Mandates are not what the governments of free people do … period. And, of course, the point is the mandates we’re having put upon us demonstrate that point – it really doesn’t matter what it is that’s mandated.

            BTW, the militia act is for a specific purpose – what would you expect a good militia member to bring to a muster today? A firelock or musket? Because he damn sure can’t legally bring anything that would actually be effective on the battlefield.

            And if I remember correctly, the act that formed the National Guard pretty much gutted the authority of the Militia act.

  • As Instapundit also pointed out yesterday, the Federal government plausibly could do this under the Militia power. The broad outline of the argument is good but there’s so many details that those who want to dismiss it can pick at that and thus so many opportunities to just dismiss it that it won’t change anybody’s mind.

    • I’m expecting to see the Obama Administration do the same with healthcare that they do to enforce the 55 mph speed limit nation-wide .. extortion.

    • You can argue the details, but the militia power is mentioned.

      The reality is that social security was upheld as constitutional based upon the preamble, and subsequent federal overreach has mostly been upheld by reading an “effects” in the commerce clause that does not exist. The left has created a whole “meaning of ‘is’” argument that federal judges have gone along with, to justify the creation of this massive federal overreach. Most citizens haven’t payed attention, and now we are at a point where no judge is gonna rule a massive entitlement like social security or medicare unconstitutional, simply due to the realpolitics of any resulting dislocation that would result.

  • The difference between being a state rather than a federal government.
    In an era of “one stop” shopping, somethings are still spread out over the 50 (or is that 57) states.

  • The SD State Constitutuion , in ART 15 formally establishes a militia, says all able bodied males ages 18-45 are part of it (with certain restrictions), says the State is responsible for arming etc..
    So it appears to me that the State can, in fact, require all members of it’s militia to arm themselves.

    • Don2 – how does saying “the state is responsible for arming them” require anyone to purchase a gun?

      • Article 15 , Section 2 of SD’s Constitution leaves it to the State Legislature, the specific language is:

        Legislative provisions for militia. The Legislature shall provide by law for the enrollment, uniforming, equipment and discipline of the militia and the establishment of volunteer and such other organizations or both, as may be deemed necessary for the protection of the state, the preservation of order and the efficiency and good of the service.

        By my reading that means the Legislature can pass a law requiring how the militia is equipped.  Section 1 describles the composition of the militia.

    • McQ, folks are pointing to the plenary police powers the courts have held states hold.  Which are pretty stinking pervasive.  I dunno if any court would support the SD mandate, but they have supported other laws which were less sane.
      http://legalinsurrection.blogspot.com/2011/02/one-thing-missing-from-gun-mandate.html
      Jacobson was pretty good…

  • McQIf [lefties] believe in the power of the Commerce Clause to require citizens buy what the government demands they buy,  why not a gun?

    Because guns are, like, BAD ‘n’ stuff.  Duh!

    / sarc

    The question is really pertinent.  Libs have decided that health care is a right.  They have also declared that anything that is a “right” must be provided for by the government if you can’t afford it yourself.  So, when can I expect them to deliver my:

    — FM transmitter (and assign my frequency and call sign)

    — Printing press

    — Do-It-Yourself church kit

    — M-16A2 rifle with a basic load of magazines and ammo (I’d prefer an M-240B, but I’m not pushy)

    — Deed to property (hey, I have a right to it, so gimme!  A few acres on the coast near Morehead City would be fabulous)

    The problem is that libs have succeeded in twisting the definition of “right” out of its original meaning, with bad results for the country.

    Brad WarbianyThe State of South Dakota *can* require residents to buy guns.  The city of Kennesaw, GA already does.  Just like the state of Massachusetts *can* require residents to buy health insurance.

    The power of the states / counties / municipalities to mandate just about anything under the sun that doesn’t violate their own state constitutions is implicit in arguments against various FEDERAL powers / mandates.  The states DO have considerable powers to coerce their citizens to do quite a number of things (car insurance is a good example).  This, in my opinion, is what the Founding Fathers intended; hence the IX and X Amendments.  Kennesaw, GA can mandate that its citizens be armed; NYC can mandate that its citizens don’t eat trans-fats.  No. Carolina can mandate that its citizens may not smoke outside their own homes (go figure; we are the tobacco state); California can madate that its citizens can smoke grass if they want.  All perfectly within the intent of the federal Constitution, and perfectly sensible for a country intended to be a union of sovereign states.

  • If the courts interpreted the second amendment the same way they expansively interpret other parts of the constitution, we would all be required to arm ourselves and join a militia.