Let’s say McDonald’s decided to double all its salaries, so that the entry-level wage became $16 an hour instead of $8 an hour. Why would McDonald’s continue to employ their $8 an hour workers when instead they could hire “better” workers who are worth more? (And those of you who think that the skills, linguistic abilities, experience, intelligence, etc. of fast-food workers makes no difference in service don’t eat in McDonald’s much.) [...]
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HuffPo: McDonald’s could double all salaries and would only have to raise prices by 17 percent. Not quite. Tom Maguire takes the story apart. He also asks the obvious question: If McDonald’s could raise prices without lowering sales, why haven’t they done it already?
Children health advocates are targeting Ronald McDonald in an effort to prevent McDonald’s from marketing to children. San Francisco has already banned “happy meals”, and other cities have tried to follow suit (sparking industry resistance).
Meanwhile, a Wisconsin man has apparently eaten his 25,000th Big Mac in 39 years — that’s almost two a day — but does not seem to be any the worse for wear.
Gorske, who appeared in the 2004 documentary “Super Size Me,” which examined the fast food industry, looks nothing like one might expect of a fast food junkie. He’s trim and walks regularly for exercise, and he attributes his build to being “hyperactive.” He said he was recently given a clean bill of health and that his cholesterol is low.[...]
When the Supreme Court for the first time recognized the existence of an individual right to bear arms in District of Columbia v. Heller in 2008, I warned that the decision might well end up giving gun owners very little new protection against regulation:
The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But
the District of Columbia certainly isn’t leaping to implement that right…..
History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.
To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.
Earlier this year, McDonald v. City of Chicago ruled that the Second Amendment applies to state governments as well as the feds. Nonetheless, it is far from clear that the ruling will have much effect. McDonald left intact Heller’s expansive list of “presumptively lawful regulatory measures,” which includes restrictions on the sale of guns, bans on carrying guns in “sensitive” locations, bans on ownership by felons (which in most states includes a wide range of people who have not been convicted of any violent crime), and others.
Proponents hailed Heller and McDonald as setbacks for gun control advocates. They predicted a shift in gun policy throughout the country.
But so far it hasn’t happened that way. While there have been challenges throughout the country to local,[...]
It is always a pleasure when Randy responds to one of my posts that touches on his areas of expertise. Here are a few thoughts in reply to Randy:
1) I fear there is a misunderstanding as to what comparison I made in my post to which Randy responds. In my post, I compared the blog debate here at the Volokh Conspiracy on the P or I arguments in McDonald with the blog debate on the individual mandate. That is, I was comparing VC posts then and the reactions of VC commenters then to VC posts now and the reactions of VC commenters now. Randy responds by arguing that the legal issues presented by the two cases are quite different. That’s true, but I don’t think I argued to the contrary. On the other hand, Randy’s post today does reaffirm my sense of deja vu on the blog debate: It seems to me that his post responding to me today has a passing similarity in tone and argument to this post responding to me on the road to McDonald. And come to think of it, the post you’re reading right now is kind of like this one replying to Randy. (Am I the only one who is thinking of this scene from Spaceballs right now?)
2) Randy contends that one major difference between the challenge in McDonald and the challenge here is that the challenge in McDonald raised slippery slope problems but that it is the defenders of the mandate who have slippery slope problems. I think Randy has it backwards, however. Supreme Court Justices think in terms of line-drawing, not slippery slopes. A slippery slope may be a reason to draw or not draw a line in a particular place, but it’s the actual line-drawing — the decisionmaking [...]
In an earlier post, Orin compares the current challenges to the constitutionality of the individual insurance mandate to debates on this blog over the case of McDonald v. Chicago. But there are some marked differences between the two challenges, and I don’t believe he recollects accurately the nature of the debate we had over McDonald.
First, and most importantly, in McDonald, in addition to challenging the Chicago gun ban, which most observers (Orin included) believed would succeed, the challengers were also seeking the outright reversal of longstanding Supreme Court precedents on originalist grounds — in particular, the Slaughter-House Cases, Cruikshank, and Presser. In contrast, in the challenges to the mandate, the challengers are resting their case on their interpretation of existing Supreme Court precedents. In particular, they rely on the long line of cases that analyze the “class of (intrastate) activity” being regulated to see if it is either “economic” or “essential to a broader regulation of interstate commerce.” In no previous case, has the Court ever sanctioned the mandating of economic activity as a Necessary and Proper exercise of the commerce power. The difference between challenging century-old precedents and offering an interpretation of existing precedents can hardly be exaggerated. This difference is already being manifested in the rulings of lower court judges.
Second, and of almost equal importance, in McDonald, the challengers’ theory of the Privilege or Immunities Clause faced several uncertainties including serious “slippery scope” issues. These included identifying what rights are included among the privileges or immunities of citizens of the United States, how such rights are to be identified, what differential treatment, if any, is warranted between citizens and persons, and what laws might be unconstitutional under a revived Privileges or Immunities Clause. Although these difficulties were known [...]
The more I participate in discussions on the constitutionality of the indivdiual mandate, the more it feels to me like a replay of last year’s discussions on the Privileges or Immunities Clause on the road to McDonald v. City of Chicago.
In both cases, the issue is whether the Supreme Court will adopt limitations on the scope of government power that are greatly desired by libertarians and supported from an originalist perspective, but that Supreme Court doctrine hasn’t shown any particular sign of adopting as a a matter of constitutional law. In both cases, much of the commentary in favor of the limitation seems aimed at fostering a sense of the legitimacy of those limitations with the hope that this will make it more likely for the Supreme Court to adopt them. In both cases, I find myself at odds with my co-bloggers on the likelihood that the Supreme Court would take that step — with my co-bloggers seeing it as a quite realistic possibility, and me seeing it as extremely unlikely. (In both cases, I saw it from the outset as a likely 8-1, with only Justice Thomas on board.) And in both cases, many commenters are extremely passionate about what they believe the correct constitutional answer must be — with commenters seemingly lining up in the same way on the two issues.
There are differences, of course. The debate over McDonald was more for law geeks than the public: It concerned the likelihood an argument would win in a known case, not even the result in that case, and it lacked the broad political movement that exists over the individual mandate. Still, I can’t avoid the sense of deja vu. [...]
Dan Schmutter weighs in on the future of New Jersey’s strict gun control laws in the wake of McDonald.
Dan was also on Freedom Watch with Andrew Napolitano this morning and I understand the show will re-air a few times over the weekend. Eventually it will go up on the show’s website here, but as of this morning it isn’t up yet. [...]
It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here. [...]
As a follow-up to David Post’s post last week on issue v. outcome voting, I direct you to a new op-ed in the National Law Journal by Cohen and Stearns.
Did I happen to mention that David’s article with Salop (along with other contributions to the literature) are discussed in some detail in the book Public Choice Concepts and Applications in Law? [...]
Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant — let’s assume it’s a criminal defendant who was convicted under a state nuisance statute — raises 2 issues: that the statute in question is unconstitutionally vague, or, in the alternative, an unconstitutional abridgement of the freedom of speech. Two of three judges, after due consideration, believe the statute is not unconstitutionally vague. Two of three judges believe the statute is not an unconstitutional abridgement of the freedom of speech. The defendant’s appeal, however, is successful and his conviction is overturned. How can that be?
The answer is pretty simple. The three judges divide this way:
Is the statute unconstitutionally vague?
Judge A NO
Judge B NO
Judge C YES
Is the statute a violation of the First Amendment?
Judge A YES
Judge B NO
Judge C NO
Two judges (A and C) will vote to overturn the conviction, and therefore they will prevail and the conviction will be overturned, even though “the court as a whole” thinks the statute is neitherunconstitutionally vague nor a violation of the First Amendment.
It’s an interesting problem, and a pretty knotty one when you start to look closely at it. First of all, what’s the “right answer” in the case? Given this distribution of reasoning among the three judges, what’s the “correct” outcome? Should the conviction be overturned, or not? Secondly, if the conviction is indeed overturned and the judges disclose their reasoning in an opinion (or several), how the hell do we interpret the result? Does [...]
I’m not sure I understand the bit in Jack Balkin’s post (see also Randy) where he says that “If the Court’s argument about Congress’s intent in McDonald is correct, [i.e., if §1981 already applies the whole Bill of Rights to the states,] it follows that the main holding in McDonald is completely superfluous and the Court reached out unnecessarily to decide a constitutional question.”
Suppose it’s true that §1981 really does apply the Bill of Rights to the states. We’d still need to know whether §1981 is within the powers of Congress (most plausibly under §5 of the Fourteenth Amendment). This would require a holding that the Fourteenth Amendment authorizes applying the Bill of Rights to the states — in other words, a holding about incorporation.
Jack seems to deal with this objection in the following paragraph. (More or less; the following paragraph actually appears before the part about the superfluousness of the constitutional holding, and is aimed more at objections to the argument that §1981 incorporates the entire Bill of Rights, an argument I’m assuming to be correct for now.)
Fourth, we can argue that although Congress reenacted this language under its powers to enforce the Fourteenth Amendment, section 1981 is not congruent and proportional to the rights guaranteed by the Fourteenth Amendment, citing the Court’s modern section 5 jurisprudence in cases like Boerne and Garrett. It is therefore unconstitutional to the extent that it attempts to enforce the Bill of Rights. The difficulty here is twofold. First, a law which the Reconstruction Congress believed enforced the same rights as the Fourteenth Amendment must be congruent and proportional to the Fourteenth Amendment if any law is. Second, the fact that the Reconstruction Congress — consisting of the same people who passed the Fourteenth Amendment — passed the 1866[...]
Prof. Doug Berman (Sentencing Law & Policy) has an interesting post on this, focusing on the six states that don’t have state constitutional right to keep and bear arms provisions. I would add to that list Massachusetts, which has a provision that has been interpreted as not securing an individual right, and Hawaii, which has a provision that has not been interpreted definitively one way or the other; both of these are relatively high-regulation states, and thus more likely to have potentially vulnerable gun control laws. [...]
The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.
I. Limited Practical Impact.
Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.
The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.
This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time…
Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have[...]
Sixteen minutes, taped this afternoon, for iVoices.org. MP3 here.
I also discussed the decision on Denver’s Caplis & Silverman radio show. Dennis Henigan, from the Brady Center, was the guest after me. The show’s archive link is here. Ignore the archive’s caption, which incorrectly states, “Do you agree with the Court? David Koppel opposes the decision, Dennis Henigan supports.” [...]