The federal government currently preempts the states regarding the issue of sports gambling, allowing only four states to sanction the activity. This however may change soon, as legislators in California are considering a bill to decriminalize sports gambling in the state. Under the proposed Senate Bill 1390, which was recently approved overwhelmingly by the senate, sports betting would be allowed at licensed gambling establishments, including casinos and horse-racing tracks.

Unfortunately for freedom lovers, the bill is not the result of someone reading Lysander Spooner’s Vices are not Crimes and deciding to let a thousand flowers bloom. It is entirely an issue related to tax revenue generation, itself the result of profligate government.

It’s no secret that plenty of Californians – and folks in all the other states for that matter – place bets on sporting events, despite a federal prohibition. (Isn’t it funny how laws against non-violent behavior with no victim never seem to work out?) Because of this, legislators are hoping to begin regulating this gambling for the purposes of collecting licensing fees and taxes on winnings.

As part of the legislative process the committee researched Nevada’s sports gambling totals and estimated them to be somewhere north of two and a half billion dollars. Given California’s immense budget deficit, even a fraction of that multi-billion dollar industry would help to relieve fiscal strain. The bill’s sponsor, Senator Roderick Wright, said of the “illegal” gambling “We receive absolutely no money from it,” and suggested the state could end up with “a great deal of money” as a result of his bill.

The interesting thing to note about this whole episode is how the bill appears to open the door to nullifying the federal government’s criminalization of sports gambling. According to the report in The Los Angeles Times, Senator Wright hopes the feds will one day decide to allow California and, presumably, other states as well, to oversee sports betting just as they do with other forms of gambling. This would then allow his bill to go into effect, or so it would seem.

The obvious question that comes to mind is: why wait? So what if the feds claim the authority to prohibit states from allowing gambling on sporting events; Californians should do it anyway.

That’s what the government in New Jersey is doing. Governor Chris Christie recently reversed his less-than-friendly position on gambling and, doing his best Andrew Jackson impression, said regarding sports gambling, “If someone wants to stop us, let them try to stop us.” This was on the heels of New Jersey voters approving to 2-to-1 a non-binding measure to open sports gambling in the state.

Again, the reason Christie became so willing to go along with this is not because of his sudden embrace of freedom, but because he has to find $1.3 billion to balance the state’s budget.

This whole dispute results from an act of congress back in the early 1990s that made sports gambling illegal for all but the few states that allowed it: Nevada, Delaware, Oregon and Montana. The Professional and Amateur Sports Protection Act (PASPA), which made it illegal for most states to authorize gambling on sporting events, is itself unconstitutional, making it ripe for nullification. There is no authority for the feds to regulate gambling under the commerce clause when it is conducted solely in one state, meaning the law wasn’t passed pursuant to the constitution. Because of this the supremacy clause also does not apply, and finally, the act violates the 9th and 10th Amendments.

It is certainly encouraging to see more states using nullification, or at least threatening to do so, over such issues as decriminalizing drugs and sports betting. Of course it is a sad commentary that we’re only seeing states begin to push back against the federal government on these issues because they want to put their hands on the proceeds of this commerce. There is some good however, because at least if states were free to decide these issues the debate would move to a smaller, more localized venue, and it could provide advocates of liberty a better chance at expanding freedom than now exists.

As a final note, given the federal government’s demonstrated propensity for outlawing peaceful activity that does not result in a victim, perhaps it would be beneficial for states to amend their constitutions with the following language:

All non-violent activity which does not result in a victim is hereby declared lawful; the right of the people of this state to engage in behavior that does not produce a victim shall not be abridged.

Joel Poindexter
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