Monthly Archives: July 2014

What if Congress Accidentally Killed Obamacare? Unpacking the two recent Obamacare decisions in Plain(ish) English.

CapitalAs you may have seen, the D.C. Circuit Court of Appeals and the 4th Circuit Court of Appeals recently handed down decisions which alternately crippled or saved the tax credit system that powers the Affordable Care Act’s (ACA/Obamacare) insurance exchanges.  The cases center around whether or not the ACA limited the availability of refundable tax credits to state-run (as opposed to federally-run) insurance exchanges by calculating the credits based on months covered under a policy “enrolled in through an Exchange established by the State.”  Really, the heat of the entire debate centers around one the letter “S.”  How so?  Well, I’ll explain it in more detail below, but the short answer is that “State” is a defined term explicitly meaning the 50 states plus the District of Columbia, while “State Exchange” or even “Exchange established by the state” would be a more ambiguous term that could have a broader meaning, and it turns out that a little ambiguity is as valuable as gold for the Executive Branch’s position.  In the end, I think we’re left in the rather curious position where Congress fairly clearly meant to give credits to eligible individuals enrolled in any Exchange, but Congress also pretty clearly actually wrote the law in a way that does not extend those credits to individuals in federally-run Exchanges.  So what do we do?  How do we balance things out?  Our answer to that will end up saying a lot about the way that we view the operation of government, and I think that answer also opens up a serious strategic opportunity for Republican lawmakers.

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Filed under Court Cases, Jurisprudence & Lawmaking, Tax Law

Can Gun Control Stop Mass Shootings? (Part 2)

After a bit of a break for vacation.  I’m returning with Part 2 of my consideration of whether or not gun control can stop mass shootings (Read Part 1 Here).

Before we dive into the question, we first need to add some precision to our vocabulary. What constitutes a “school shooting” can be a very broad class, and when the term conjures visions of Columbine, that image doesn’t exactly fit the data points that were used by Everytown.  Many of the incidents were simply shootings that took place at or near a school.  That is, the school was not itself a target, and the violent altercation simply happened to take place there (such as a drug-related altercation or a suicide outside of school hours).  In fact, of the 74 events cited as school shootings since Sandy Hook, fact-checking website PolitiFact found 10 that conjured up images of Columbine (although even then, their list include events like the would-be shooter at UCF who committed suicide instead.) While all of the events cited by Everytown are shootings that took place at school, the appellation “school shooting” seems misleading.  To avoid confusion like this, rather than argue the semantics of defining “school shooting,” we might need to alter our vocabulary.

If it’s the Columbines, Virginia Techs, and Sandy Hooks we’re primarily concerned with, it may be more useful to look to criminology, which refers to these incidents as mass murders (or mass shootings).  While mass murder is not a technical legal term, it is used by the FBI and others to describe a multiple homicide involving four or more victims which take place all in one incident.  This is different from other terms which you may have heard, such as a serial killer or a spree killer (see below).  In contrast to the other classifications, a mass shooting will take place largely in one location, and it is an endgame scenario which the shooter(s) knows will almost always end in their death or arrest.

Diff murder

With this definition in place then, we can finally address the question posed by the title of these two blog posts: Can Gun Control Stop Mass Shootings?  At first glance, the answer seems to be yes.  Mother Jones flatly asserts that more guns equals more mass shootings (correlation as causation, anyone?).  Slate also puts it bluntly:  when Australia passed strict gun control laws in the wake of a mass shooting in 1996, they saw a massive drop in gun violence and there have been no further mass shootings.  So isn’t that all we have to do?  Cut down on guns and we cut down on violence?  That seems to be the logic behind groups like Everytown and many parents grieved in the wake of various mass shootings.  Of course, when Slate goes on to describe the laws Australia passed, the measures taken seem to go far beyond the ones that have so much trouble passing here:

“At the heart of the push was a massive buyback of more than 600,000 semi-automatic shotguns and rifles, or about one-fifth of all firearms in circulation in Australia. The country’s new gun laws prohibited private sales, required that all weapons be individually registered to their owners, and required that gun buyers present a “genuine reason” for needing each weapon at the time of the purchase. (Self-defense did not count.)”  – Slate, Dec. 16 2012

Given our Constitutional framework in the wake of Dist. of Columbia v. Heller (holding that the right to bear arms for self-defense is a fundamental constitutional right), these types of measures could only pass with a significant Constitutional Amendment, one that I think we can all agree is unlikely to happen anytime soon.  Furthermore, as Heller ties its holding to a natural right of self-defense, pistols will remain the most difficult firearm to significantly regulate, and since a Texas State University found that a pistol was the most powerful weapon used in 60% of the mass shootings that occurred between 2000-2010, it’s difficult to imagine regulations that could be passed in the current framework that would fully achieve the desired result of keeping guns out of the hands of potential killers.

So do mass shootings just have to be accepted as a cost of the Second Amendment?  For the reasons I’ll discuss below, I don’t believe this to be true. Continue reading

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