Consistent Inconsistencies

The Second Amendment to the Constitution is a relic of a bygone era of revolution. The Founders could not have contemplated it would apply to semiautomatic handguns. The Founders absolutely could not have contemplated it would apply to machine guns. The Founders could not have foreseen mass shootings. It is silly, therefore, to think the Second Amendment applies to present weaponry and situations. Therefore, there must be some other, more specific meaning to the Amendment related to the “well regulated militia.”

That is the progressive argument, in a nutshell.

The Fourteenth Amendment to the Constitution is a relic of a bygone era of the Civil War. Its authors did not intend it to apply to illegal immigration or birth tourism. Its authors could not have foreseen Democrat politicians leaving the southern border unsecured and the nation overrun with illegal aliens in an invasion.

That is the right’s argument, in a nutshell.

Chief Justice John Roberts wrote an overly broad opinion in Trump v. Barbara, holding not just that illegal aliens born in the United States are citizens, but also that the birth tourism industry gives birth to American citizens. Chinese Communists, in well documented efforts, have been flying into Guam to give birth to babies who become American citizens. They have also started a cottage industry of surrogacy in the United States, exposed by the media.

The Supreme Court overreached on birth tourism. Justice Clarence Thomas gets the better argument. The Chinese tourists have no intention to take up residence in the United States. They no more intend to be subject to the jurisdiction of the nation than an invading army. They are more like American Indians who were not treated as citizens under the Fourteenth Amendment because their loyalty was to their tribes.

The decision was not 5 to 4. It was actually 6 to 3. Justice Kavanaugh voted with the majority, though he disagreed with their reasoning. What most commentators on the right have missed is that Justices Gorsuch and Thomas both recognized large classes of illegal aliens born in the United States would be citizens. Justice Alito did not preclude that, but was nebulous. It is also worth noting that 5 of the 6 in the majority agreed on a coherent whole. Not a single one of the three dissents really agreed with each other on their reasoning.

Critics of the decision rely on a speech transcribed in the congressional record from May 30, 1866, and the Fourteenth Amendment author, Senator Jacob Howard, which reads, in part, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Gorernment of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

The Oxford comma was not used, and the overwhelming consensus has been to focus on the nouns, which were spoken, not the commas, which were added later by a stenographer, so (1) foreigners¹; (2) aliens who belong to families of ambassadors; and, (3) foreign ministers accredited. Otherwise, one is left to wonder who the “who” is, if it is not the aliens.

The decision is now the law. Birth tourism can most likely be fixed by legislation. Preventing children born of illegal aliens from becoming citizens can be fixed by securing the border and deporting illegal aliens here.

For those who fret about Democrats taking over, it’d be helpful to hold the President and his own party accountable for their lack of discipline on the economy, growing concerns about corruption, and a botched peace win Iran. There is no permanence in American politics. Some of the post-liberal, progressive right, want a dictator. It will not happen. Democrats will win elections again. The best way to forestall that day is ruthless competence in service to the American people.

The Supreme Court’s decision was not a disaster. It was a preservation of the status quo. To change it will require work at the legislative level and winning elections, not doom and gloom and unhinged rants.

1. Clarifying here for some confused: “foreigners” would be tourists or those passing through, which is why I think birth tourism can be stopped. “Aliens” are those intending to stay for some time. Some also read this as “foreigners: aliens who belong to famlies, foreign ministers, etc.” Either way, it is not as clear as some insist.