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Commerce, Fear and Legislation

Interstate CommerceAs I type my 40th birthday is barely two years away.  And I don’t know if it’s my age combined with the times or if it’s the times by themselves but over the past few years I have become keenly aware of a rapidly increasing divide between the people of the United States.  I know, I know, every generation laments the passing of the ‘good ol’ days’ and things were always better yesteryear.  Time has that sort of scrubbing effect; it distorts the very perception of our own hindsight.  But I sense that what is happening now is something more dark and angry.  The happy-go-lucky naivety of my youth has passed.

The current state of affairs is that we can break the thinking people in our society into two general groups of people:  liberals and conservatives (some people may prefer ‘statist’ and ‘libertarian’).  There are many reasons why liberals and conservatives are different but sometimes they are actually in agreement on a particular thing that needs to be accomplished.  This agreement is only on the surface, though.  The devil is in the details.
Suppose for instance that you are sitting in a cold house and would like to get warm.  The liberal tells you to turn on the heat while the conservative suggests that you wrap yourself with a down comforter.  They are both describing a way to achieve an end result but their opinions on how to get there are quite different.  You, the cold person, are being sold two different approaches to satisfy your need and both seem to be genuine and sincere in their desire to address it.  But if you aren’t paying attention you will miss the larger picture; the reason those two methods are being offered is that they represent some aspect of a larger agenda and there is a good chance that neither of them really care about your warmth.  For example, the liberal may tell you that heating the whole house is the best way because it gives everybody in the house an equal ability to be warm; nobody is made to be warmer or colder than anybody else.  The conservative tells you that the down comforter is more appropriate because it is cheaper and the ability of an individual to achieve warmth is directly related to how well they wrap themselves.  How each came to the conclusion that their way of warming cold bodies was the right way could be rooted in their life experiences and upbringing or it could be that they are being directed by less often seen third parties: lobbyists.  The liberal receives large campaign contributions from the HVAC Worker’s Union and the conservative is being backed by the IAIDP, the International Association for the Infiltration of Down-Containing Products.  Once this realization is made we can begin to understand that making people warm is secondary to the way in which people are made warm.  Everybody has an agenda; something to accomplish.

The treatment of pet owners and the reptile trade is no different.  In general politicians aren’t concerned about snakes; special interest groups are.  Each side of the argument has found a sympathetic ear in the form of the liberal and the conservative.  Sweet nothings have been whispered, campaign contributions have been made and like Rock Em’ Sock Em’ Robots the politicians have been put into the ring, punching and jabbing and all the while it’s special interests (like the HSUS) who are pushing the buttons.

The HSUS and other animal extremists made a brilliant move in 2010 when they decided to temporarily de-emphasize the law-making process.  They performed an end-around by using the USGS’ biased report on large constrictors as a means to get the Department of the Interior to add the nine constrictors to the list of injurious species in the Lacey Act.  And, considering the outcome of the 2010 mid-term elections,  what a brilliant move it was.  They didn’t need any members of Congress to take this path.  All they needed was a liberal in the Oval Office to appoint a liberal to head the Department of the Interior.  Now the decision is no longer up to “the people”; it is now in the hands of an impossibly small few within the Department of the Interior.  And one of the biggest ways it is being sold:  fear.  I have heard politicians and other bureaucrats say, over and over, that one of the reasons that large constrictors need to be controlled is because of a “threat to public safety”.  In 2010 I sat in a hearing of the House Judiciary Committee and listened to Florida House Representative Thomas Rooney (a Democrat) read a statement that said exactly that.  But it’s a big lie.  Large constrictors are not a public health concern; they pose an impossibly small risk to humans.  Your odds of being killed by a large constrictor are about 1 in 584 million.  For a little bit of perspective on how that compares with other ways to die please read this post I made about the odds of being killed by a python.

The other big argument for controlling pythons is the environment.  The USGS’ horribly biased, self-serving and repeatedly debunked report (here, here, here and here for starters) on nine large constrictors paints a picture of these snakes taking over much of the country.  The reality is that they pose a risk to southern Florida at best.  And in all seriousness, if pythons and boas are such an invasive species why are only the large one’s being targeted in these attacks?  Invasive is invasive, regardless of size.  The real answer is simple.  They are easier targets because they prey on people’s  fear.  Many people have an irrational and media perpetuated fear of snakes.  And big snakes, one’s that can eat big things are worthy of additional fear.  The truth is that laws have been proposed and the Lacey Act is about to be amended because of fear.  Not public safety, not the environment.  Just fear.  And it’s such an easy sell.  Imagine a reporter walking up to you and saying, “Do you want giant, man-eating pythons living in your back yard where your children play?”  Who in their right mind would answer anything other than no to such a leading question?

So is it really possible for a government to legislate based on fear?  Sadly, yes.  As evidence of such efforts let me direct your attention to a seemingly unrelated topic:  guns in schools.  If you were to ask every American whether or not it was OK for children to take guns to school you would find that 99.999% are in agreement that it is not.  And in 1990 Congress passed a law that said exactly that.  The Gun-Free School Zone Act of 1990 made it a federal crime for anyone other than law enforcement to take a gun onto school property.  I am VERY pro-gun and I completely support the idea at work; no guns in schools.  Well, not long after being enacted the law was challenged in the courts.  And in 1995 the U.S. Supreme Court shocked everybody when they agreed, striking down the law as unconstitutional.  The attorney’s for the federal government had argued that the law was valid under what is called the Commerce Clause in the Constitution.  Their primary argument was that Congress was within it’s legislative authority because the presence of guns in schools would lead to people being fearful and being fearful would lead to an environment less conducive to learning.  Without quality education people would be less prepared to be economically productive and this would significantly impact interstate commerce.  And Congress does have the ability to legislate interstate commerce.  Now I don’t want guns in schools any more than any other sane American but the crux of the government’s argument was that they could legislate the People because something might cause someone to be afraid.  And if they could ban guns in schools because of fear what other aspects of a persons life can they control using fear as the justification?  To say this is a slippery slope is an unprecedented understatement.  The Supreme Court vote was 5-4.  One vote in the other direction and legislative branch would have been given the power to legislate based on fear.  Please note that there is more to the case (United States v. Lopez) and the rational of the Justice’s decisions.  Please take some time to read about it yourself.

So is it now legal to carry guns in schools?  Nope.  Was it a decision made by the states?  Nope.  It is a federal law.  But how?  The Supreme Court said the law was unconstitutional.  Well, some smart lawyers and politicians revisited the original wording of the bill that Congress passed, changed its language and reintroduced it.  Let’s call what they did what it really is:  they twisted the wording to make the Constitution work for more federal power.  In the re-worded bill they made it a crime to take any gun onto school grounds if that gun had been involved in interstate commerce.  The manufacturing of a gun involves a lot of individual pieces, most of which came across one state line or another.  By linking the desired result (no guns in schools) to ‘things’ used in interstate commerce the re-worded bill was passed by Congress and, though not yet taken up by the Supreme Court, has withstood Constitutional challenges in lower courts.  Despite my support for the end result, the mechanism used to achieve it scares the hell out of me.

It should go without saying that I am glad that guns are not allowed in schools.  Am I glad that the federal government passed a law for it?  Not particularly, no.  I think the states could have handled it on their own and I am quite confident that each state would have done so.  Even though the end result of this decision was a good one it should serve as a scary reminder for every citizen that the federal government can potentially control every aspect of your life if they can correctly wordsmith a bill in Congress to link it to one of their enumerated powers.  And the commerce clause (in conjunction with the “necessary and proper” clause) has been repeatedly used to expand the federal government’s power over the states.  And today the fate of much of the reptile trade hangs in the balance.  Whether through Congress or the Lacey Act the federal government is poised to leverage fear in order to control the interstate transport of a ‘thing’ (a snake).  States should decide which reptiles are allowed in their communities, not the federal government.  Once something becomes federal law it binds us all; there is nowhere to go to be free of it.  It suffocates.  If Florida wants to ban the ownership of Burmese pythons, let that state’s citizens decide to do so.  But geographically speaking, Minnesota is a different planet than Florida.  Minnesotans don’t need the same protections when it comes to such concerns.


Colin Weaver


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