Sunday, August 12, 2012

Constitutionality of Federal Laws Prohibiting Sports Betting and Granting Special Gaming and Gambling Rights to Selected States or Groups to be Challenged by New Jersey

How constitutional is federal law that limits sports betting in the United States to only selected States? or which grants special gaming rights to special groups such as Native Americans via their reservations in the USA?


Such a status of federal law is arguably a prima facie overreach of federal Constitutional powers.

Although we are not ardent States' right advocates, there is little doubt in this writer's opinion that current "unequal" federal gaming and gambling laws in general are clearly unconstitutional as violations of the First Amendment's commercial speech protection and are to the same degree also impermissible infringements of States' rights to legislate in this arena of human behavior, for which there is no pervasive federal justification.

We think that federal preemption is not supported here by the power of the Commerce Clause, any moreso than for the sale of e.g. alcohol, which is regulated by the individual States.

Similarly, no basis can be found in the Constitution to support a federal grant of special gaming rights to Native American reservations, gaming rights that are in turn prohibited by federal law to individual States.

The current state of gaming and gambling law in the USA is an impossible constitutional situation. There is little doubt that the current Supreme Court of the United States would strike down these laws as being unconstitutional.

As the failed Prohibition (of alcohol) via the 18th Amendment to the U.S. Constitution (later repealed by the 21st Amendment) proved unequivocally, prohibition is NOT the solution, whether this be alcohol or gambling.

Rather, governments are better advised to levy income-producing taxes on what some sectors of the population consider to be "morally" undesirable behavior and to try to regulate such behavior sensibly, rather than to try to stamp it out altogether, which experience has shown to be ineffectual.

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