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If mandatory gun ownership, why not mandatory insurance?

REUTERS/Joshua Lott

When state Rep. Hal Wick introduced a bill last year to require most adult South Dakotans to own guns, he didn’t think the legislation would pass, didn’t think it was constitutional and wasn’t even promoting gun ownership.

His real purpose was to oppose the mandated insurance coverage in President Obama’s health care law.

“If the federal government can order every one of us to buy health insurance because we need medical care, it makes just as much sense for us to require everyone to have a weapon to provide for their protection,” Wick, a Sioux Falls Republican, was quoted in the Rapid City Journal.

Actually, mandatory gun ownership DID make sense to President George Washington and his Congress in the early days of the Republic.

A 1792 federal law called for “every free able-bodied white male citizen” ages 18 through 44 to be enrolled in a state militia and to “provide himself with a good musket or firelock,” along with a bayonet and ammunition.

Key question

As the U.S. Supreme Court hears arguments about Obamacare this week, a central question is whether the Constitution, under its Commerce Clause, allows the government to force people to do something or pay for something they don’t want just because they are Americans (or, in the alternative, pay a penalty, seen by some as a tax).

“If any activity, or inactivity, can be said to have economic consequences, can it be regulated — or required — by Congress?” columnist George Will asked. “Can Congress forbid the inactivity of not purchasing a product (health insurance) from a private provider?”

So far, the answer has been yes, pretty much.

In a leading case under the Commerce Clause, the Supreme Court ruled in 1942 that Roscoe Filburn had to obey New Deal federal crop limits — or pay a penalty — even for wheat that never left his Ohio farm but was used to feed his chickens, cows and family. The court recognized that the decision would be “forcing some farmers into the market to buy what they could provide for themselves.”

Nobody has to farm, of course, but hundreds of thousands of Americans do, thank heavens. Theoretically, nobody has to drive, either (and thus be required to buy car insurance), but something like 88 percent of Americans have driver licenses, often of necessity.

And there’s an even longer history of government at various levels forcing us to do things — often with financial consequences — just because we’re Americans.

The Constitution allows Congress to organize armies, the Navy and militias, but authorizes conscription only by implication at best (under a clause allowing laws “necessary and proper” to execute its powers). Nevertheless, millions of us served in the armed forces under the draft, with restrictions on personal liberty and sometimes at the expense of career advancement and better pay. And many conscripts died in the service of their country.

Generally, we must provide for schooling for our children, have their blood drawn for testing at birth and get the kids vaccinated. Most people who work already must help pay for medical insurance under Medicare payroll taxes. And the government can force you to sell your property (as it did a few years ago for businesses and homes displaced by the Best Buy headquarters in Richfield).

Gun bills of the past

As expected, Wick’s gun bill didn’t go anywhere in the South Dakota Legislature. But similar laws have had great success, going back to about 1630, according to Clayton Cramer, a gun history author.

According to Cramer, some gun possession appeared to be mandated at one time or another in all of the 13 colonies except Pennsylvania, which was founded by Quaker pacifists. Some laws were connected to arming militias, some not. Some provided for government to help buy guns for the poor, some didn’t. Some legislators, fearing Indian attacks or slave rebellions, required citizens to carry guns to houses of worship or public meetings.

The culture of “we’re all in this together” is deeply ingrained in American life, progresssing over generations from colonial defense with guns to public education, county poor farms, veterans benefits, Social Security, interstate highways and Medicare. Even “you’re on your own” has collective implications; we taxpayers often pick up the bill for uninsured who show up at emergency rooms.

With modern medical advances (and soaring costs), it was logical for the president and Congress to see, if imperfectly, universal health coverage as the next frontier.

What we’re left with now is a series of ironic and vexing political and legal questions. Will Republicans succeed in sinking a health care plan with significant Republican roots, from Richard Nixon to Newt Gingrich to Mitt Romney? Would the legal landscape be much different if the law were based on single-payer insurance (or Medicare for all), which many Democrats wanted and Republicans abhorred? And, as conservatives might put it in a different context, will unelected, activist judges overturn the work of our elected representatives?

Robert Franklin is a retired Star Tribune reporter and editor.

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Comments (15)

  1. Submitted by Mike Downing on 03/28/2012 - 11:31 am.

    Ridiculous Arguement

    This is a ridiculous argument since national defense is one of the few expressed limited powers of our federal government.

  2. Submitted by Dennis Tester on 03/28/2012 - 12:17 pm.

    Mandatory gun ownership

    Some of my friends claim that if the ACLU protected the 2nd Amendment as vigorously as the 1st, private gun ownership would not only be allowed but required in this country. The 1792 Militia Act which Mr.Franklin mentions was aimed at creating state militias, the precursor to the national guard, and most able-bodied men already owned firearms anyway. But the right to bear arms is provided for in the Constitution and was thought to be so vital to the survival of the nation that it was second on the list of amendments. Health insurance? Not so much.

    It’s important to remember, since Mr. Franklin mixes up his examples, that through the 10th Amendment, the states have different powers than the federal government. What’s reasonable and acceptable for the state to require and manage, may not be true on the federal level. Requiring that all children attend school or get vaccinations or that their parents buy auto insurance or have their property fall under eminent domain, are issues left to the states and local governments and are not roles for the federal government.

    And the culture of “we’re all in this together” may be deeply ingrained in American life, but it’s not the law. Because contrary to popular belief, the United States of America is not a 313 million-member collective. It is a nation of 313 million people endowed by their creator with certain unalienable and individual rights. Among which is the right to not have to purchase something they don’t want.

    • Submitted by Pete Barrett on 03/28/2012 - 04:51 pm.

      Fourth? Fifth?

      Would that the Tea Party were as concerned about the Fourth Amendment as they are the Tenth.
      But perhaps if a right is eviscerated by conservative judicial activists it’s not so bad.

    • Submitted by Gerald Abrahamson on 03/28/2012 - 10:23 pm.

      Nice try, but you missed major points.

      The Militia Act of 1792 specified a *military* grade weapon PLUS items a private person normally would not buy (such as a bayonet). So, your squirrel gun would NOT be acceptable–you had to go out and buy ANOTHER gun (and the other required stuff for it as well) from a private supplier. Plus, people were required to pay for it out of their own funds–no govt funding to cover the cost. If you were a shopkeeper in NYC, why would he need a military-grade rifle and bayonet (and so on)?

      Tenth Amendment? Powers not delegated to the feds belong to the states AND the people.

      And you missed the relevant part of the problem. Healthcare is now BIG interstate/international commerce–which places it BEYOND the capability of any one state to regulate or control it.

      • Submitted by Dennis Tester on 03/29/2012 - 07:26 am.

        Yes, but

        if the Militia Act of 1792 was still enforced, you might have an argument. But it’s not because wiser arguments prevailed.

        Health insurance is regulated by the states. It’s only illegal to do business across state lines. Removing that barrier is part of the solution.

  3. Submitted by Bernice Vetsch on 03/28/2012 - 02:36 pm.

    The PPACA needs everyone to take part because

    without including everyone in the risk pool, the risk is concentrated among those who do buy insurance instead of being spread across the entire population. Those who choose not to purchase insurance still get sick or have accidents at the same rate as insured people, but will rely on insured people to pay premiums high enough to cover their medical expenses.

    • Submitted by Dennis Tester on 03/28/2012 - 03:38 pm.

      That’s always been the case Bernice

      And it’s true with life and auto insurance too. That doesn’t mean the federal government has the power to make you buy it so the actuaries are happy.

      The problem is exacerbated with policies that all cover the same things whether you need the coverage or not. Why should a 60 year-old man have to buy an insurance policy that covers pre-natel care? Why should a 30 year-old woman have to buy a policy that covers prostate cancer?

      The solution is not huge policies that cover everything that government thinks anyone might need, but smaller, tailored policies that cover those things that you are at least physiologically most likely to encounter due to your age, gender and family history.

      In other words, let the health insurance companies sell products that are appropriate for an individual’s needs and let them compete across state lines with other insurance companies like auto insurance does. Let the market work. And if you can’t afford it or the insurance companies won’t sell you anything because you’re already sick, let the government cover you under Medicaid or Medicare.

      • Submitted by Logan Foreman on 03/28/2012 - 11:00 pm.

        Or let

        71 year old political leaders who sent 20 years olds to death in Iraq wait to receive a heart transplant until far more deserving younger people. Oh excuse me, he is a rich Republican. By the way, Tester, the health insurance market works for only the rich

        • Submitted by Dennis Tester on 03/29/2012 - 07:30 am.

          There is a solution for the poor

          Medicaid. But why eliminate everyone’s freedom of choice to provide something for the poor? There’s no need to unless you’re only in this for the power over people’s lives and not to solve a problem.

          • Submitted by Don Medal on 08/25/2012 - 10:30 am.

            Medicare isn’t enough

            Medicare doesn’t target the key group involved here.

            The wealthy or even well off can afford insurance and if wealthy enough, don’t have to sweat pre-existing conditions.

            The really poor have Medicare, so far anyway.

            But the working class folks, health insurance is a significant bite out of their monthly budget. If young and healthy, they opt out, which makes sense for them individually, economically, but is bad for everyone else. I think the reasoning is, “if I get a major illness or injury, I’ll just declare bankruptcy”. Or that bad things won’t happen to them, just others.

            So those tax paying citizens without large reserves wind up with the rest of us paying for their medical bills. And if one of this demographic gets a long term illness while uninsured, well they are just screwed.

            As long as the rest of us have to rescue them when they can’t handle medical bills, I have a vested interest in everyone of these “freeloaders” paying for their own insurance. Same as I have a vested interest in every driver having liability insurance. This personal responsibility is why this plan has long been favored by Republicans. I have not heard a plausible explanation for the present dislike for this latest switch of view.

            Meanwhile my medical costs go up to pay for the uninsured’s sick kids. And the working class goes bankrupt in the event of medical needs.

  4. Submitted by Andrew Richner on 03/28/2012 - 03:23 pm.

    Not exactly a mandate, not exactly a penalty

    It’s vitally important to recognize that the so-called mandate to purchase health insurance is not exactly a mandate and the penalty for not doing so is not exactly a penalty either. This is critical to the idea that it IS a regulatory statute. The question is — does the mandate criminalize the non-purchase of health insurance? And the answer to that is no. If you do not buy insurance, you are subject to a tax penalty.

    The mandate is not a legal requirement in regards to which non-compliance makes you a felon, the mandate makes uninsured individuals subject to a tax penalty. On your tax return. If you could be charged with non-compliance in court and given a sentence, then it’d be another story, but we’re talking about assessing a tax penalty, and subjecting those who choose to be uninsured to a tax penalty is well within the powers of Congress to mandate and the IRS to execute. George Washington’s gun mandate by historical necessity was reaching much further than that since the IRS didn’t even exist to regulate tax collection, nor were individual income taxes in existence at that point in time.

    The penalty isn’t a hard-line dollar amount either. It’s based on income, as is Medicare/Medicaid eligibility. So there should be no situation in which a person who cannot afford health insurance is forced to pay a penalty that’s greater than what that person can pay.

    The point is not to outlaw not owning insurance, it’s 1. to disincentivize risky health care decisions and 2. to offset their cost. The irony is, if the court overrules this law, it will basically be saying that any future efforts by the federal government to provide universal health care will HAVE to come in the form of a single payer system. And to discover the real meaning of this entire debate, all you have to do is suppose that such a system had become law. The legal arguments would be different, but would any of the key players and their positions be any different?

  5. Submitted by Mark Finley on 04/15/2012 - 10:12 pm.

    Sure it will make you a felon, just not directly. Try not paying the tax and see what happens.

  6. Submitted by Tom Harvey on 01/01/2013 - 09:35 pm.

    Gun Insurance

    @guninsurblog Effective gun insurance that will protect everyone and be a minimal burden on gun owners is possible. The problems are real but solutions exist that will cover lost, stolen and diverted firearms. The costs can be kept to normal insurance margins over the risks that are really there. It will require designing a system with care but the insurance industry has done that many times. See my blog on gun insurance http://www.guninsuranceblog.com

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