Friday, October 9, 2015

Whose Constitution Is It, Anyway?

Here's an experiment: pull up a search window on your device. Once it has loaded, start typing the following:

W h o ' s  l

On both Bing's search engine and Google's, as soon as I type in the letter "l," suggestions narrow to two tops ones. One suggestion is the popular series, "Whose Line is It, Anyway?" The other suggestion is the movie, based on the play, "Whose Life is It, Anyway?" Just one letter makes all the difference in the choices. Choose "Line" and you find a popular improvisational comedy series hosted by Drew Carey. Choose "Life" and you get a maudlin drama about a sculptor rendered quadraplegic who prefers death over paralysis, and who, through conversation with them, wins over the staff of the hospital to the idea of his being allowed the "right" to die.

Whose Life? Whose Line?

Both set the stage to draw us into an escape from present reality.

My question is a bit different, and I hope that I do not draw you into an escape from present reality. Instead, I hope to awaken you to present reality and invite you to change it.

An ongoing conversation about "anchor babies" and "birthright citizenship" has been revived in substantial part because Donald Trump has raised the issues as part of his bid for the Republican nomination for the presidency. In a weekend rally, for example, Trump hit hard on "anchor babies" and "birthright citizenship" as part of his larger objections to the problems America faces with illegal immigration.Trump's stance has gotten several airings on national news outlets. One of the harder hitting exchanges Trump experienced happened on The O'Reilly Factor:

That Trump would take on the question of "anchor babies" and "birthright citizenship" surprises no one that read his 2011 book. In it, he wrote:
Some four million anchor babies are now officially U.S. citizens. This has to stop. The only other major country in the world that issues citizenship based on where one’s mother delivers her child is Canada. The rest of the world bases citizenship on who the kid’s parents are, which is of course the only sane standard.
As an aside, Trump's claim that Canada is the only other nation that recognizes citizenship based on being born within its borders is wrong. Australian law makes any child born in Australia, regardless of the legal status of his or her parents, a citizen. That citizenship settles on the child on their 10th birthday. In addition, historically, every person born within the borders of the United Kingdom was considered a subject of the Crown. That approach has been changed by Parliament since England restructured its relations with the Commonwealth nations (including Canada and Australia). Today, children born in the United Kingdom are automatically citizens of the UK if one of their parents is a citizen, or if one of their parents is lawfully settled in England. Other nations have now, or have had, birthright citizenship in various forms. Those nations include Thailand, which has changed its laws on the subject numerous times since the early 1900s, Brazil, and Argentina.

Trump did set of a firestorm, though, with that early summer observation about the criminal element among illegal immigrants. His observation that illegal immigrants included murderers and rapists was bound to offend many, never mind the obvious truth of his observation. That truth is lived out every day in States like Texas that border Mexico. In a 2014 Breitbart article, then State Senator Dan Patrick is quoted at length from a radio interview:
Hours before Texas Gov. Rick Perry announced he would send National Guard troops to the border, Texas state Senator Dan Patrick said there are at least 100,000 illegal immigrant gang members in the state.
On Monday’s The Laura Ingraham Show, Patrick, who is also the Republican candidate for lieutenant governor, said from 2008 to 2012, 143,000 illegal immigrant criminals were arrested and jailed in Texas.
He said these were “hardened criminals, gang members, and other criminals that we identified as being in Texas illegally.” “We charged them with 447,000 crimes, a half-million crimes in four years, just in Texas, including over 5,000 rapes and 2,000 murders,” Patrick said. “We estimate we have 100,000 gang members here illegally.”
ONE HUNDRED THOUSAND GANG MEMBERS illegally in the United States, inflicting a HALF MILLION CRIMES in Texas IN JUST FOUR YEARS. The crime wave included MORE THAN FIVE THOUSAND RAPES and TWO THOUSAND MURDERS. One wonders why Trump's remarks did not result in his being carried by supporting Texans alone to the White House to dethrone the President that cares not for his country's people.

The news readers and the lap dance media chopped Trump's full remarks, omitting his recognition that many illegal aliens present in our country are not violent criminal offenders of the sort to which he had just referred. The chopping and omission might have been unintentional, but it seemed designed to inflame passions. In his full remarks, he referred to those other illegal aliens as "good people." Of course, as such things go, some commentators wondered how those who violated US borders and migration laws, and consequently moving into a black market or underground economy, could be considered "good people" at all.

Now, at the time of Trump's original remark, no one would have predicted the horrific death of Kathryn Steinle at the hands of a vagrant illegal alien, who found a missing service handgun belonging to an Obama administration employee and shot her to death as she strolled arm and arm with her daddy on San Francisco's Embarcadero. In the aftermath of the murder, Trump's remarks were revealed as seemingly prescient. Trump's foreknowledge that such a thing would happen electrified Americans tired of politicians and commentators who bandy words about on such topics as illegal immigration, but who, ultimately, take no effective steps to address the situation.

While location, they say, is everything in the real estate business, in politics, timing is location. Trump's observations, so close in proximity to Steinle's murder propelled Trump upward and upward in polling and in notice. In fact, as some of the supporters of Trump's nomination competitors were heard to whine, Trump was taking all the oxygen in the room. Even Jeb Bush, whose war chest for the campaign made him the obvious candidate to beat, has been left to wonder just what bus it was that hit him.

In months following, Trump has put some specifics underneath his original remarks. During a Sunday morning appearance on "Meet the Press," Trump proposed specific steps to address America's problems with illegal immigration. Among the steps he proposed, Trump stated his intention to eliminate "birthright citizenship." Of course birthright citizenship brings us to the discussion of "anchor babies."

Then, just yesterday, Congressman Lamar Smith (R-TX), in an editorial titled, "Why We Should Have a Debate on Birthright Citizenship," put forward his view that "anchor baby" status is a fiction of bad constitutional construction. Lamar expressed those views on the Heritage Foundation's Daily Signal. and arguing that Congress has the power to interpret the Birthright Citizenship Clause of the Fourteenth Amendment. He wrote:
Birthright citizenship is based on an erroneous reading of the Fourteenth Amendment to the Constitution, which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens[.]” 
Last April, the House Judiciary Subcommittee on Immigration held a hearing to determine who should be a citizen under the Fourteenth Amendment. 
Witnesses testified to the fact that historically, Congress never intended to treat all persons born on American soil as citizens. Native Americans and children of foreign diplomats are examples of children born in the United States but who are not subject to its jurisdiction under the Fourteenth Amendment. 
Congress is explicitly given the power to interpret the Citizenship Clause by legislation in section 5 of the Fourteenth Amendment. It states that “[t]he Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
My intention is not to break Smith's concept up into the broken bits that it actually is, I mention it solely because I share his view that the debate is one we should have. More precisely, the debate is one we should have before folks like Smith and Congressional allies push through potentially unconstitutional legislation stripping citizenship from Americans based on a purported constitutional "power to interpret" the Birthright Citizenship Clause that Smith and others claim Congress has been granted under Section V of the Fourteenth Amendment.

In a future post, I take apart the notion of eliminating "birthright citizenship."

Today, however, I am asking you to consider a larger question, one that, once answered by you, should influence your participation in the future pursuit of changes to America's laws on immigration, and on "birthright citizenship." I want you to consider that you have responsibilities and powers in these matters that  -- before you simply allow "solutions" to be thrust on you and the Nation -- you should understand and fulfill.

So Trump has ideas for possible solutions?

He isn't alone. Commentators do too. Mark Levin, the conservative radio host and author, has attacked "birthright citizenship" as a legal concept and has said that Congress could address the problem through legislation. Of course, members of Congress have proposed solutions too. In proof of that point, I ran a search on (the Legislative Branch's website) to see current pending proposals. That search produced over 100 pending legislative proposals.

In a Republic such as ours, our elected representatives should represent our views. So WE are entitled to have our own views, and we have the right and the duty to weigh in on such debates to put our views forward. Of course we have that right and duty. Our right is derived from the nature of our federal Republic.

Look at that Constitution of yours. What are its opening words?

Does it say:

No, it doesn't. Does it say:

No, it doesn't. Does it say:

No, it doesn't. Does it say:

What it does say, is WE THE PEOPLE.

Now some might think that phrase is a mere superfluity, or a nicety. I think not. It reflects perhaps   never more memorably rephrased than by Abraham Lincoln, in his brief, but beautiful, and stunningly consequential Gettysburg Address:
It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.
There is a tendency to assume that we should defer to the judgment of "experts" on questions about the scope and meaning of our Constitution and our laws. That tendency appeals to the part of us that assumes that government is an implacable force, impervious to citizen impulses for change. It also, unfortunately, appeals to the part of us that cannot be bothered to be engaged in the civic life of the Nation.

We should know better.

Our history as a People teems with stunning examples of how the People of this Nation seized the horns of dilemmas and steered the Nation in new, and often better, directions.

Before the War for Independence, American colonial resistance to the the Stamp Act led to its repeal by the English Parliament. Upon the determination to separate from England and declare independence, citizen soldiers joined in the struggle to cement our Nation's separate and equal status among the Nations of the world.

While abolitionists were broadly perceived as political gadflies, their efforts pricked the conscience of a nation and kept alive the Free States' drive to limit the expansion of slavery in the antebellum South. The underground railroad, of course, was, to each life rescued, indelible proof of the value of citizen action.

The struggle for women's suffrage amply illuminates the significance of citizen activism. The 1964 classic, Mary Poppins, gives us a lighthearted peek at that issue:

Of course, suffragist and tee totaller, Carrie Nation, offers us the reminder that citizen activism can take the Nation farther in a policy direction -- in her case, she was also a Temperance activist -- than we ultimately conclude is wise or warranted.

The civil rights movement of the 1940s-1960s is the most obvious illumination of the power of citizen activism on the national level. Boycotts, marches, sit-ins, these and other appeals to the conscience of a Nation forced us to join in a conversation with the descendants of slaves, and to work to make a reality in their lives, and all ours, that equality of all men stated in the Declaration of Independence.

So, coming back to the question of "Birth Right Citizenship," and particularly the issue of "Anchor Babies," each of us has both the right and the duty as citizens, not simply to watch the ongoing debate, but to join that debate, to insist on a share in the conversation. If you agree with Trump, if you disagree with him, as I do on this issue, you should and can join the conversation. If you agree with Mark Levin, or with Congressman Smith, or disagree with them, as I do, your views and voice should be heard before our Constitution is changed, whether by amendment or by disregard.

If you oppose so-called "pathways to citizenship" or if you support them, join in the debate. whatever your opinion, join in the debate. It is only our Constitution if we keep hold of it, and remind those who would ignore the People that the document is ours, not the Courts, not the judges, not the lawyers, not the Presidents, but ours.

Monday, October 5, 2015

A Caution for the Statists: Fuck Not With The Natural Rights of Men

The Bill of Rights came about as a compromise between Anti-federalists who feared that the ultimate result of the Constitution would be a central government of continuously expanding size and constantly increasing power, on the one hand, and Federalists, on the other, who claimed that such an outcome would never be possible under the Constitution.

You can read the Federalists. That series of papers, by Alexandria Hamilton, James Madison, and John Jay, earnestly argue that the American people would never tolerate the federal leviathan forecast by the Anti-federalists.

To clarify though, neither group thought that the "Bill of Rights" was a list of permissions or privileges being granted by the federal government. These rights were recognized rights of men as creations of Nature and Nature's God. The right to life, the right to liberty, and the right to property are affects of our human nature created in God's image. These rights can certainly be trammeled by others, but they are not GRANTED by them.

One of the key disputes between the two groups was over the need for a statement of these rights, given that the Constitution created a government of limited, donated powers, and reserved all rights not expressly granted to it, to the People and to the States, respectively. For Federalists, adding the Bill was, in that sense, surplusage. The limitation of the ability to restrict those rights constituted surplusage -- in their view -- because the Constitution did not grant the federal government powers to restrict these rights. Notice that the Federalists did not dispute these rights existed, nor that they came to men as an affect of their status as created beings of a superintending Divinity. The only point of contention as to these rights was whether stating them in a Bill of Rights was necessary or excess.

Add two centuries of experience with the burgeoning federal government to the debate between the Federalists and the Anti-federalists, and then ask, who correctly foresaw the future?

The question makes the heart ache.

Congress passes laws restricting freedom of speech. Obama imposes (and threatens to impose) restrictions on the natural right of self defense. The Supreme Court bitch slapped the right to life by purporting to find, in the penumbra of the Due Process Clause of the Fourteenth Amendment, a right of women to kill their own offspring with government sanction.

Of course the Anti-federalists were right.

Honestly, for me, the only question is whether the brilliant minds of Jay, Hamilton, and Madison masked an improbable and imponderable naivete, or whether they masked darker designs. I think the former, and when I ultimately scour and score the Federalists Papers, the title of my tome will be the Folderol Papers.

So we come to this moment.

A braying ass occupies the White House.

He IGNORES that the murderous bastard who killed nine others in Oregon -- according to surviving witnesses -- selected only Christians for shooting in the head.

He IGNORES that the murderous bastard who killed nine others in Oregon did so in a GUN FREE ZONE.

He FAIRLY TAUNTS the American People, from behind the Armed Curtain of the White House, with threats of disarmament of the People. The Federalists denied that a power to restrict the private ownership of weapons was granted to the federal government by the Constitution. Obama, by reports, is presently awaiting the preparation by his toads and minions of additional executive action FURTHER restricting the right to keep and bear arms.

Yes, the Folderol Papers. Because the federal leviathan is real, is threatening, and will consume the rights of men.

The Congress, which ought to be a bastion of the rights of the People, has proved, over the course of years, either to be fellow travelers of Statists (when Democrats run Congress) or useless, feckless, ball-less wimps, whose stances leave the person of normal sensibilities wondering why they had never noticed before the existence of a subclass of the human species devoid of a backbone.

So, use your rights, or lose them.

Speak now.

Threaten now.

Put those who think that they can trammel God given rights with no more consideration than if they accidentally brushed against you while passing in a crowd that you will explain in hot lead why you do NOT FUCK AROUND WITH THE RIGHTS ENDOWED men by God.

Wednesday, September 30, 2015

To Rand Paul, Cruz is Toast, But Wimp Republicans Should Grab Their Bao and Get Out

So Ted Cruz is not the TOAST of the Senate, but, instead, is TOAST in the Senate.

At least, that is the take on the situation as seen by Senator Rand Paul, the junior Senator from the Commonwealth of Kentucky. He made those observations in an interview carried on Fox News Radio (hat tip to In Rand's view:
Ted has chosen to make this really personal and chosen to call people dishonest in leadership and call them names, which really goes against the decorum and also against the rules of the Senate, and as a consequence, he can’t get anything done legislatively. He is pretty much done for and stifled and it’s really because of personal relationships, or lack of personal relationships, and it is a problem.
I lived in Kentucky for a couple years. I am, in fact, a member of the Kentucky Bar Association. I have family there. One might say our family's ancestral lands include a broad swath of Eastern Kentucky, since our long grand grand sire, John Beckley, a friend of Thomas Jefferson, held land patents for large tracts in what would become the Commonwealth.

As a public service, I am providing the following translation of Rand's observations, so that you can understand what Rand actually said:
Ted Cruz has exposed Mitch McConnell as a liar, and several of his republican colleagues as political eunuchs who talk an interesting game but consistently walk down Capitol Hill with their balls in a jar answering the taunts and jeers of BarryO the Boyking with servile kowtows. A man who does such things makes the public wonder why the eunuchs willingly allowed their own castration.
In turn, that makes the decision to be a ball less, unmanly, vigor-free, political courtesan one that even the eunuchs question within themselves. Such questioning makes their own hearts and minds burn with shame. Of course they hate Cruz. Of course they will refuse to work with him. His manly firmness in the fight, his willingness to stand on principal, these things expose them as what they are: neither man, nor woman, neither clever nor skilled.
Later this month, for the first time since the Last Emperor of China discharged the imperial eunuchs, the United States will witness a courtesan eunuch leaving Capitol Hill, when John Boehner makes good on his hissy fit and departs the Speaker's Chair in the House. Rumors already are running rampant that the skulduggery among Republican courtesan eunuchs is not yet complete: it appears that party leadership is also urging Mitch McConnell to grab his bao and go.

Monday, September 28, 2015

Court Rejects Once-a-Month Bill of Rights

Eric Segall has an article on the Daily Beast that seems to suggest that, given the chance, the Supreme Court would reverse a decision out of the US Court of Appeals in Washington. The DC Circuit, in a split 2-1 vote, struck down DC's “one gun a month registration rule.” Limiting gun registration to one a month effectively limits additions to an individual's gun safe to one a month, because such guns have to be registered.

The recent decision reflects the continued battle by Dick Heller to vindicate his rights under the Second Amendment. While the three judge panel upheld six gun regulations in what was, once, the Murder Capitol of the United States, the Court struck down a rule that only one gun a month could be registered with the City.

Taking cases to the Supreme Court is what attorneys do ... when they are paid well, or when they work on hotly contested issues of public policy.

I know.

I did exactly that for twenty five years, including twenty one years as Senior Counsel with the American Center for Law and Justice. Still, a good attorney knows when to call it quits, when not to suggest that his client spend money that will, essentially, be wasted. Segall apparently thinks an attempt at Supreme Court review would not waste the time and money expended.

One of the tasks of attorneys that regularly practice before the Supreme Court – a task I undertook many times for my employer – is to evaluate the facts of a case, the condition of the law on a subject, and the opinions and decisions of the justices of the Supreme Court, so that a client has the most well-informed basis on which to decide whether to pursue review of their case at the Supreme Court. That kind of consideration makes lots of sense, just given the costliness of seeking Supreme Court review. Depending on legal fees and the costs of printing and service of legal documents, a request to the Supreme Court to review a case can cost into the six figures. Just the preliminary stage of asking for review can run that high.

Obviously, issue organizations, the one I worked for, and others, like the ACLU, the NRA, the NAACP, raise significant funds to carry such cases to the Court, and carefully select cases for the purpose of winning strategic decisions from the Court. Segall’s post urges the District of Columbia and gun control advocates to go all in on this particular case. His advice rests on two principal points.

First, in his view, the temper of the times is quite different today than nearly a decade ago when the Supreme Court issued its decision confirming that the Second Amendment protects an individual right to keep and bear arms. Segall’s post suggests that the school and public shootings and the public temper resulting from them puts the Court in a different position than when the Court decided Heller. Until District of Columbia v. Heller, gun control advocates persistently claimed that cities, States, and the federal government had a free hand in regulating, restricting, even prohibiting gun ownership, because, as they saw the matter, the Second Amendment only protected the right of States, rather than the rights of individuals. Heller rejected that view.

Second, Segall asserts, because the restriction that the DC Circuit struck down only regulated the pace of gun purchasing and accession to a private owner’s “armory,” it is different in its essential character. On that point, of course, he is not entirely wrong. There is a none-too-subtle difference between telling a man he cannot own a single weapon and telling him that he may only register one gun a month with the District. If that rule had been in place since the day the first Heller decision came down, and a gun enthusiast had wanted to do so, he could have added nearly 75 handguns to his Washington, DC, based collection in the intervening period. So, sure, there is a difference between restricting and forbidding.

The judges that struck down the one a month rule explained their decision as follows:
The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of “more than one pistol per registrant during any 30-day period,” D.C. Code § 7-2502.03(e), “promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” []

It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District “could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes.” 

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence.  For example, Chief Lanier stated "[s]tudies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal
interstate trafficking of firearms."  Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration[.]"

One of the experts also testified from his own observation that w hen Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers , he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, t he suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense . Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so. 

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home."  Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self - defense or hunting or just collecting, be cause, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home.
Now as to the temper of the times being different today, Segall forgets, or ignores, that the Supreme Court decided Heller in 2008. The case was briefed by the parties, the case was argued before the Court, the justices conferenced their views, and the Court issued its decision in the immediate aftermath of the 2007 mass shooting at Virginia Tech. The shadow of Columbine stretched out too, though it was nine years since that shooting. The immediacy of the Virginia Tech shooting, however, belies the notion that more recent shootings make for a different social construct today.

Against the DC Circuit’s reasoning, Segall contends that now is the time to act, to pursue review in the Supreme Court, and to do so with his seeming expectation that the Court would overturn the decision of the DC Circuit and affirm the power of municipalities like DC and, presumably, States, to restrict the pace of gun purchasing by individual gun owners.

Segall expressly invokes a notion popularized by Mark Tushnet, a professor of constitutional law, about the kinds decisions one is likely to see issued by the Supreme Court. Tushnet’s view, simplified, is that, if you cannot imagine a New York Times headline reporting the outcome of a Supreme Court case, then it is likely the Court would not issue the decision.

Tushnet’s theorem, however, is not so nearly helpful a tool as Segall believes.

A few examples suffice to show what is wrong with the theorem. Remember that the notion is, if you cannot imagine the decision of the Supreme Court as a headline on the New York Times, then it is unlikely the Court would render the decision.

Yet, the Supreme Court struck down the laws of virtually every State in the Nation, and its first decision on the topic of abortion, created a legal vacuum in which women were free to have an abortion at anytime during the ninth months of gestation, and for any reason at all, or for no reason whatever.

Could you picture, back in time, the New York Times publishing the headline:

“Supreme Court Greenlights Killing Babies Day Before Scheduled Delivery”


“Constitution Guarantees Right of Women to Murder Children”

Well, no, you probably could not. 

Travel back to the eve of the last century. We are in an era following a bloody civil war that cost nearly half a million lives and, in today’s value, Eighty Billion Dollars in plundered wealth. The war ended, the Nation undertook its long, slow healing, beginning with the addition of three amendments to the Constitution. One of those amendments, the Fourteenth, contains the first, and only, express requirement that governments must guarantee to all their citizens the equal protection of the law. In that clime, how likely would you consider a headline such as this one:

“Negro Complaints Over Segregated Train Cars Have No Merit, Supreme Court Rules”


“In 9-1 Decision, Court Holds Equal Protection Does Not Require Equal Treatment”

Although the “Greatest Generation” is fading into memory by the minute, could men and women that lived alongside, worked with, did business with, Americans of Japanese descent imagine a headline such as this:

“No Harm, No Foul: Locking Up Japs Without Due Process A Necessary Tool In War Time.”

Of course, in these cases, and in most every one that the Court ever decides, there is more than one way to describe what it is that the Court is doing. For example, in the Roe v. Wade case, it could be easily imagined that the New York Times might run a headline such as this one:

“Abortion Ban Denies Women Due Process of Law.”

Or, in the era of Jim Crow laws, one could imagine a headline saying,

“Constitution Does Not Prohibit States From Regulating Private Contractual Relationships.”

Or, in the aftermath of Pearl Harbor, one could easily picture a headline such as this one:

“Temporary Relocation Protects Japanese Americans From Danger, Provides Port Security.”

You see, I think, the problem with a tool like Tushnet’s. Every circumstance in life can be described in more ways than one. If one version of a story makes a plausible headline, then the Court might take a case that produces such a headline? There are better ways to predict what cases the Supreme Court will take to review. Imaginary headlining is not typically a line item in a lawyer’s billing to his client.

So, in this case, Segall says, “Strike now, while the iron might be hot.” Perhaps he correctly reads the temper of the Court. Perhaps a petition from review, asking the Court whether a government can legitimately restrict a citizen to the exercise of a constitutionally protected right to a periodic occurrence of one time a month. Perhaps the Court would uphold a City ordinance limiting demonstrators to one protest a month. Perhaps the Court would uphold a federal statute guaranteeing an accused to representation by counsel once a month. Perhaps the Supreme Court would sustain a state law limiting the New York Times to a schedule of once a month publication.

Yes, guns are different.

Yet, a persons rights with respect to guns, their ownership, and their availability to them as a tool of political participation, are full partners in the Bill of Rights, and in the essential rights of man.

Segall can imagine the Court taking a case in which it would affirm limits on the periodic addition of weapons to one’s personal armory. I can too. But only because I do not find it difficult to imagine a Supreme Court unhinged from the Constitution, unconnected to the natural law that the Bill of Rights respects, and too full of its purpose and mission to realize how its aberrations of law foment political and social instability.