Unfortunately, the DC Circuit slapped down a challenge to the surviving and strict antigun rules of Washginton DC post-Heller to allow various restrictions on firearms, while allowing a narrow right to own a handgun. Of course, in other areas of law, we would not expect a constitutional right to be treated this way. A law allowing newspapers, but not magazines, would not pass muster under the First Amendment. Likewise, allowing people to vote, provided they do so in the most inconvenient times and places and with various prohibitive fees, was struck down in a series of decisions in the 1960s. Thankfully, there are relatively few anti-gun jurisdictions these days: Chicago, Wisconsin, California, and some of the Northeast are pretty much it. “Shall Issue” concelaed carry is now extant in approximately 40 states. It would be unwise to appeal this decision to the Supreme Court until there is a bona fide circuit split. For now, residents of the Imperial Capital must make due with Draconian registration requirements.
Incidentally, there is a lot of talk on the right that the individual mandates of the Health Care Law are unconstitutional. As a matter of first principles, arguably this law and 90% of other things the federal government does is unconstitutional because they do not flow from an enumerated power. Of course, there is a lot of water under the bridge, and the idea that the law’s individual mandate is intrinsicly unconstitutional and will be found so by the courts is somewhat fanciful.
For starters, the mandate proceeds through a penalty tax: get insurance or pay a higher tax. The tax power is very broad; it was the basis of federal regulation of narcotics upheld in the 1919 Doremus decision, and it is the basis of a great many regulatory schemes, including the original 1934 National Firearms Act (which taxed but did not outright prohibit machine guns). Most critics seem unacquainted with this body of jurisprudence.
Second, direct federal regulations such as OSHA, EPA, Clean Air Act, etc. control individual conduct all the time, such as in the requirement that cars have catalytics converters. To undo the individual mandate would likely endanger all of this. Perhaps that’s a good thing, but it seems a step that no court would take.
Finally, at the very earliest stages of the American Republic–and coming full circle from Heller discussed above–Congress mandated under the Militia Act of 1792 that individuals own a musket, 20 rounds of ammunition, and other accoutrements to be prepared for military service. And this mandate covered nearly the entire male population of the country. This seems a very useful precedent for the health care defenders, but I’ve seen little reference to it in the papers and on the blogs.
There might be some basis on constitutional grounds to argue that conscripting states to implement the program dragoons their employees unconstitutionally into doing the bidding of the federal government (i.e., the holding arising from the Brady Bill in Printz v. United States (1997)), and there is also a growing (but largely irrelevant) body of law that certain non-commercial activities cannot be regulated under interstate commerce. That said, it’s highly unlikely a court challenge will undo this monstrosity, and, since the law is so unpopular, a court challenge is probably not the best way to proceed in order to cement the legitimacy of any such undoing. It would be far better for the country, far more salutary to our character as a people, to reject this soundly and with much fanfare through the legislative branch.