Finding an Analogy for the Health-Care Mandate

Dear me. One in three federal judges feels that the new health-care law’s individual mandate – that everyone is required to buy health insurance – exceeds government’s powers under the Constitution.

The new health-care law is really complicated and abstract (a lawyer’s dream, in other words), so a lot of people have been using analogies to help bring the issues into focus for us simple folk. I’d been fond of the states’ uncontested right to force automobile owners to buy insurance for their cars. However, it turns out that really smart lawyers can distinguish this analogy into oblivion.

Those of us who remember our childhood civics classes will recall that the federal government only gets the powers enumerated in the Constitution. All other powers remain with the states (except when they don’t, but that’s another story). So the states can require insurance, but the feds can’t.

As I was thinking about this, it occurred to me that there’s another flaw to the analogy with car insurance – compliance. We do know that there are people on the road in Philadelphia who actually have car insurance. We’re not entirely an endangered species, but if you have a collision at an intersection in this town, the likelihood of the other driver having insurance probably isn’t much better than a coin toss.

If compliance with the new health-care law looks at all like compliance with car insurance, we might as well go home now.

So the car insurance analogy is pretty much mangled. And with compliance levels being what they are, conservatives are unlikely to mount a 50-state push to repeal car insurance laws as an infringement on our liberties. Why bother? They’ve already won.

I thought for a while about the military draft. I had thought, when I was younger and there was a war in Vietnam, that the draft might be considered involuntary servitude, and therefore unconstitutional. But then it was explained to me that, in this country, government has a right going back to colonial times to call all adult males to the common defense of the community. How the right of the states to raise militias got transferred to the federal government is something I’m still a little hazy on.

But I’m thinking if we can force an 18-year-old man to charge a machine-gun nest, we really ought to require him to buy health insurance.

Or maybe conservatives should get a judge to declare the military draft unconstitutional. I’d love to see that one go to the Supreme Court.

Here’s another analogy that I came up with – the tax deduction for charitable giving. Government, as a matter of policy, encourages charitable giving. Remember those Thousand Points of Light? So if you give money to a qualified charity, Uncle Sam lets you pay less in taxes.

Well, they say charity begins at home. So if you buy a health insurance policy for yourself, you’re doing a good deed, and Uncle Sam doesn’t make you pay a penalty.

Apparently the distinction between a tax break and not having to pay a penalty is a big deal. I’m afraid I don’t see it. And there’s apparently a feeling that we shouldn’t be forcing people to give money to private organizations. Well, charities are private. And apparently the government has never punished people for not doing something. On this last one, I just have to laugh. Let’s do a little thought experiment. You receive a telegram from the United States government, one that begins with “Greetings.” It’s an invitation to attend a form of summer camp run by the government. You decide not to go, and you’re a bit rude and you don’t bother to respond to the invitation. What happens next?

What the Greeks Knew

Recently I was rereading the plays that Sophocles wrote about Oedipus and his family, and it struck me: This whole mess got started with a traffic dispute.

One day Oedipus was tooling down what passed for a highway in ancient Greece, and he found his way blocked by a man in a chariot who, with the help of his servants, tried to force Oedipus off the road. The charioteer may not have been entirely the pompous ass that we may think. After all, the road was probably a narrow one-lane dirt track, and it appears that Oedipus was on foot, so it would have been easy enough for him to stand aside, much as I do when I'm commuting to work and an 18-wheeler decides to change lanes.

This, however, was ancient Greece, where there were no rules of the road and, frankly, not a whole lot of common sense. So words came to blows, and Oedipus killed the charioteer (who, unbeknownst to him, was his biological father), as well as an indeterminate number of servants (Oedipus originally thinks he did them all, but apparently one escaped to tell the tale, in which Oedipus is not one man but a large band of robbers — yet another testimony to the untrustworthiness of eyewitnesses).

And so the whole sorry machine of multigenerational tragedy is set in motion, with Oedipus marrying his mother and putting his eyes out, and his two sons killing one another on the battlefield in front of Thebes in a dispute over who should be running things, and his daughter Antigone (who is also his sister) getting sentenced to death for trying to bury one of the brothers who lay dead on the battlefield.

And that's the short version. I'm very happy we have traffic lights and yield signs.

And yet anybody who drives knows that savagery of Greek proportions is never very far away from us. We are human, as they were, and we are given to fits of anger, irrational over-response (escalation, we called it, back during the Vietnam war), and masterful, ingenious self-justification.

Which brings me to the point of this little essay­­ — the issue of gun control. I have some opinions about the Second Amendment to the Constitution, which I'll get to in a minute, but I do think there's a deeper issue here — human nature, and what we humans need to do to live together in peace.

Do we really want everybody to be walking around with a loaded pistol? The argument is put out that an armed society is a polite society. I'd like to see the historical evidence for that. (The situation in Iraq might make a good counterexample.) There also seems to be an unexamined assumption that law-abiding citizens will use their guns appropriately, unlike the criminals who of course have limited impulse control, are highly suggestible, and are given to fits of irrational rage.

Come to think of it, how many American motorists have I just described? So maybe we shouldn't put the guns in our cars; maybe we should just keep them in the house, for home defense. And when, while celebrating Halloween, your wife screams in terror that a goblin is at the door menacing her, are you going to get your gun out of the closet? Okay. And when the goblin keeps gesticulating because he thinks he's going to a party at your house, when the party is actually at an identical house two doors down, what are you going to do? Maybe it would have been simpler to call 911.

The Supreme Court has ruled that there is an individual right to bear arms. Whatever the legal merits of this decision, it is clearly a travesty for those who care about language or history. Still, I don't feel like refighting that battle. What I'd rather do is look at the first part of the Second Amendment, which states, "A well-regulated militia, being necessary to the security of a Free State ..."

This part of the amendment tells us something important about the world in which the Framers lived. In colonial days — Massachusetts may be the purest example — every able-bodied man was automatically in the militia and could be called to active duty at any time. The French call it levée en masse, or the nation in arms. Over the last several centuries America has moved away from the concept of universal military service, most recently by abolishing the draft.

Without the draft, I suppose we are all in that great unorganized reserve that will surely rise up to fight any foreign invader, however ineffectively. If we don't believe some fiction like that, are we not ignoring the original intent of the Framers?

So let's look at the term "well-regulated." We may not call people to active duty, but do we not, under the Second Amendment, still have a duty to train people in the use of firearms — and the consequences of their use?

As part of that training, I think people should be required to go to a big-city emergency room on a Saturday night. Just about any Saturday night will do. Stay until the bars close, and watch the gunshot victims get wheeled in — including the "unresponsive patients," aka the dead. People need to know in vivid terms what pulling a trigger is all about.