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.
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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