A Possible Trump Indictment And The Looming Constitutional Crises


As the Mueller investigation draws to a close, many political observers and legal analysts point to the increasing likelihood that President Trump will be implicated in criminal wrongdoing. Mr. Trump is not only threatened by the Russia probe but also the separate federal investigation by the Southern District of New York that recently led to the conviction of Michael Cohen. If investigators find evidence that the president committed crimes, it will trigger not but a series of constitutional crises.

As Erick Erickson pointed out earlier this week, “Republicans have gone mostly quiet, and their deflections are half-hearted and coupled with ‘but Hillary’ cries. This behavior is a pretty big red flag that everyone now knows Mueller has something and it is not good for the President and possibly for other members of his family.”

While the “something” that Mueller has may not be illegal Russian collusion, it is becoming more and more obvious that investigators do have something serious on the president. As Judge Andrew Napolitano said on Fox News after Cohen’s sentencing, “Career prosecutors here in New York have evidence that the president of the United States committed a felony by ordering and paying Michael Cohen to break the law. How do we know that? They told that to the federal judge. Under the rules, they can’t tell that to the federal judge unless they actually have that hardcore evidence. Under the rules, they can’t tell that to the federal judge unless they intend to do something with that evidence.”

While Napolitano said that the felony is that Trump paid Cohen to commit a felony, there are a host of other possible charges that the president could potentially face. These range from obstruction of justice to lying to the FBI. There is also the possibility that the investigations could have uncovered illegal acts committed by Mr. Trump before he became president. The Cohen investigation could have implicated Trump in anything from tax fraud to money laundering.

An accusation by prosecutors that President Trump committed a felony would trigger not one but several constitutional crises. The most obvious crisis would be whether a sitting president can be indicted. The current opinion of the Department of Justice is, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The DOJ is concerned that malicious indictments of the president by rogue US attorneys or states could be used to subvert the will of the people. If you think this scenario is not possible, think again. It was only 10 years ago that prosecutors illegally hid evidence in the corruption trial of Senator Ted Stevens (R-Alaska). Stevens’ conviction was overturned and two prosecutors were suspended but only after Stevens had lost his Senate seat.

On the other side of the issue is the statute of limitations. The statute of limitations limits how long after a crime that the perpetrator can be prosecuted. Some crimes, such as murder, have no statute of limitations.  In the case of most federal crimes, the statute of limitations is five years. If President Trump is elected to a second term, the statute of limitations for offenses committed early in his administration would expire before he leaves office. This would effectively mean that the president could not be prosecuted if he committed nonviolent crimes in 2017.

It should be apparent to any student of American history and the Constitution that the framers did not intend that the president should be above the law and immune from prosecution. So, what is the remedy for criminal acts by a sitting president?

Most would argue that impeachment is the answer. Under this view, Congress would impeach the president and then he could be indicted in the court system. This theory has problems as well, especially in the case of Donald Trump.

The Constitution says that grounds for impeachment include “Treason, Bribery, or other high Crimes and Misdemeanors,” but does not define these terms. A 2015 report by the Congressional Research Service found that impeachable offenses don’t have to be criminal acts and not all criminal acts are impeachable offenses. Impeachable offenses would fall into three broad categories:

  • Exceeding or Abusing the Powers of the Office
  • Behavior Incompatible with the Function and Purpose of the Office
  • Misuse of Office for Improper Purpose or for Personal Gain

With respect to the current situation, another constitutional crisis would be fomented if President Trump was found to have committed crimes before becoming president. The question would be whether the president could be impeached for crimes committed before he took office. This question would be especially relevant if the statute of limitations for these crimes would expire before the president leaves office.

Many experts argue that impeachment should be limited to crimes committed while in office. The problem is that this could prevent the president from being prosecuted for crimes he committed before becoming president.

The CRS report indicates that there is precedent for impeaching officials for crimes committed before they took office. US Circuit Court Judge Robert Archibald was impeached in 1912 based on articles of impeachment that included acts committed in his prior position as a district judge. More recently, in 2010 US District Court Judge Thomas Porteous was impeached in part for acts committed before he held any federal office. These included misconduct as a state judge as well as lying to the FBI and Senate during his confirmation as a federal judge. The charges against both men also included acts related to their current office. No one has ever been impeached solely on the basis of acts committed prior to holding office.

There is also precedent for impeachment after an official has left office. In 1876, Secretary of War William Belknap resigned two hours before the House impeached him. In his Senate trial, Belknap argued that he was a private citizen and therefore not under the Senate’s jurisdiction. The Senate voted to affirm jurisdiction over Belknap but ultimately acquitted him of the charges against him.

Impeachment is almost certainly out of the question as long as Republicans control the Senate, which they will until the end of Trump’s first term. This leads to a third constitutional conundrum. In today’s hyper-partisan environment, evidence of a very serious crime would have to be overwhelming for the president’s own party to vote to remove him from office. If there is no chance of removing Trump from office, there would be little point in House Democrats impeaching him. In the end, we may be left with a scenario in which Trump is accused of felonies by prosecutors who are prohibited by from indicting him. In Congress, Democrats consider impeachment but Republicans circle the wagons around the president and refuse to join the effort, arguing, “What about Hillary?” With the clock on the statute of limitations ticking and the impeachment effort stalled, Donald Trump could effectively use the office of president as a shield from prosecution.

The intent of the Founders was clearly not to have a presidency that is above the law. Having just fought a war to liberate themselves from a system in which the king had unchecked power, this would have been the last thing that they would have wanted, but that is the possibility with which we are confronted.

The current crisis was foreseen by John Adams, who warned, “Avarice, ambition, revenge, and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The best defense against a president using the office to shield himself from prosecution is for the parties to nominate people of good character and morals as their candidates and for voters to send trustworthy candidates to the White House. On that score, the country was in trouble regardless of the outcome of the 2016 election.

The Progressive Push For Popular Vote

They haven’t stopped whining since early in the morning on November 9, 2016. Despite Democrat criticisms of Donald Trump as being a danger to democracy for saying he might not accept the election results, it actually seems to be Hillary Clinton and her enablers that are dangerous to our republic. Now DNC chair Tom Perez has taken it to a new level. He’s just lying. According to the Washington Free Beacon:

Democratic National Committee chairman Tom Perez incorrectly stated “the Electoral College is not a creation of the Constitution” during a Tuesday night speech.

“The Electoral College is not a creation of the Constitution,” Perez said during a lecture at Indiana University Law School. “It doesn’t have to be there.”

According to the article, Perez went on to whine about Hillary having won the popular vote echoing Clinton’s own comments that the election was somehow illegitimate and suggesting we look to Kenya as a model for how to create a mechanism for overturning an election. I’m not kidding. She really said that.

Despite Democrat claims to the contrary we do not live in a democracy, by design. A brief review of the writings of the Founders will demonstrate some of the things they feared most in setting up a central government was the tyranny of the majority and the states becoming subservient to a monolithic central power. So we live in a Constitutional Republic. Say it slowly with me Democrats, Re-Pub-lic. See it isn’t so hard.

Some of the primary tools by which the Framers attempted to ensure that large and more populous states, like Texas and California, could not hold undue sway over smaller and less populous states, such as Montana and Rhode Island was the method by which we elected both Senators and the President.

Well, the Progressives in the early 20th century “fixed” how we elected Senators. Much to our detriment in this writer’s humble opinion. Now elected by popular vote, Senators have lost accountability to the government of their home state. Furthermore, they have become entrenched career politicians complicit in the expansion of federal power far beyond the intent of the Founders. Yes, Mitch and Diane, I’m looking at you.

The Progressive movement grew out of the Industrial Revolution in the late 19th and early 20th century due to rapid and fundamental economic changes. Now are dealing with the second wave of Progressives. In their zeal to address the problems posed by a society undergoing significant change due to technology and the global economy,  they desire a strong central government to ensure “fairness” and solve the problems that these changes bring. This is obvious in the popularity of Left-wing darlings, Bernie Sanders, Elizabeth Warren and Kamala Harris.

Their new obstacle? The Electoral College. You see, the Progressives have conquered many population centers including California, Oregon, Illinois and New York. In Texas and Georgia, they have made inroads in the large urban centers. If they can remove the last remaining obstacle to a government based only on popular vote, they can nearly ensure a Progressive candidate will head the Executive branch for the foreseeable future.

To achieve the destruction of the last remaining obstacle to State subservience to the Federal behemoth, they will continue the narrative of popular vote being more important and even resort to lying as Perez did in his speech. The Electoral College is enshrined in Article II if the Constitution for an explicit purpose.

Georgia is not California. Wyoming is not New York. And as incredulous as it may seem, those of us living in states that have not fallen victim to the Progressive mindset don’t want to be governed from the center as if we have. We don’t want to regulate pet stores. A law forcing public funding of abortion for any reason up until the moment of birth would also meet with quite a bit of resistance. These are just a few examples.

In this political moment, the entire national discussion has become so polarized, it’s often toxic. The differences between the coastal blue states and vast swaths of red states in the middle and to the south have been laid bare. Are red state voters really supposed to contemplate submitting to the will of large urban populations? All because Democrats and Progressives can’t get over the fact they ran a horrible retail candidate, who is ever more demonstrably corrupt, and lost?

Thank goodness the Founder’s had the wisdom to give us one more tool. The Amendment process. As is correct these are ratified by the states requiring a high bar for consensus before an overhaul to the Constitution can be affected. May we all bow to their far-reaching wisdom and thank our lucky stars the reign of Barack Obama gave us so many Republican run states. Or on January 20, 2020, you would be almost certainly choking on the phrase “President Harris”.




MSNBC Chucks the Founding Fathers

In a feat of intellectual vapidity that was stunning even by mainstream media standards, MSNBC’s Chuck Todd demonstrated that he had about as much knowledge of American history as Chuck E. Cheese when he took to the airwaves to sound the alarm about Roy Moore, who just bumped off GOP establishment incumbent Luther Strange in the Alabama Senate primary last Monday.

Specifically, Todd expressed concern that Moore—who has made no secret of his religious beliefs—is such a Christian fundamentalist that he doesn’t even believe in the Constitution as written.  His basis for that opinion?  Moore thinks that rights come from God, not government.

You don’t say!

“Those are just a taste of what are very fundamentalist views that have gotten him removed from office twice as Alabama’s chief justice,” Todd intones.  What he seems to forget, however, is that the Founding Fathers pretty much held the exact same views.  Or, as they put it in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Just in case Todd missed it, that’s Creator with a capital “C,” which rhymes with “G” and that stands for “God.”  And lest anyone miss out on just how profound a concept this is, keep in mind that it provides  the entire basis for the Bill of Rights, which assumes that since rights are derived from God, they cannot be revoked by any government.

As an elite commentator on the passing political scene, Chuck Todd should know this.  And given the way he delivers his missive, with the clipped tones and smug superiority of a college professor lecturing first year students on critical gender studies, he tries really hard to give his audience the impression that he’s an expert on the subject.  In reality, though, it’s all a con job—because if Todd actually knew the first thing about the Constitution, he would have understood that Moore’s views on rights aren’t so radical.

In other words, Chuck Tood isn’t nearly as smart as he’d like you to believe.

That there was nobody on his staff to stop him from saying something so obviously wrong doesn’t bode too well for the network, either.  After all, these are the same folks who see it as their solemn duty to tell everyone what to think, how to act, who to vote for.  Shoudn’t they hire at least a few people who know what the hell they’re talking about?

In the meanwhile, Chuck, you might want to actually read our founding documents before pontificating on them—or at least get one of your producers to do it.  You’re getting way too old to make rookie mistakes.

A Civics Discourse

Recently two extremely depressing studies have been released demonstrating the understanding (or lack thereof) that American citizens have about their government and their fundamental rights. Reading the results are somewhat terrifying in a constitutional republic that is supposed to have a government that operates with the consent of the governed. What is worse, it would seem we are putting our children through a compulsory educational system that allows them to know less about their system of government than those who wish to gain naturalized citizenship. Shall we take a look?

The Naturalization Test, is a set of 100 questions where 10 are randomly selected by an examiner and answered orally. So an applicant must study the answers to all 100 to ensure passing with a 6 out of 10 score. This is a single component of the full process, but I would think it is instructive on the basic expectations we as a society should have for citizens who are going to, oh I don’t know, vote?

The test is broken down into several categories:

  1. Principles of American Democracy – This section covers the purpose and content of our founding documents and includes the understanding that the Constitution is the supreme law of the land. Don’t tell the Democrats. Shhhhh!
  2. System of Government – Questions here include the three branches of government and how they operate, to include how laws are created and the separation of powers. It also asks questions about who is currently in office and differentiates federal and state powers.
  3. Rights and Responsibilities – New citizens are asked who can vote, who can hold office and to articulate one of several rights guaranteed under the Bill of Rights. Believe it or not an acceptable answer is the right to bear arms. This must confuse new citizens is a few states.
  4. American History – covers major events from colonization to to September 11, 2001.
  5. Integrated Civics – Includes major geographical features of the US, our flag, anthem and holidays.

Seems pretty legit and appears to be a body of information we would want all fully functional adults capable of casting a ballot to know. So how do new citizens who study all of this information stack up against our own citizens educated in an expensive and compulsory system? Well…..

Headline from the Annenburg Policy Center – “Americans Are Poorly Informed About Basic Constitutional Provisions”. In a survey of 1,013 adults in the United States released on September 12, 2017 the following results were noted:

  • More than half of Americans (53 percent) incorrectly think it is accurate to say that immigrants who are here illegally do not have any rights under the U.S. Constitution;
  • More than a third of those surveyed (37 percent) can’t name any of the rights guaranteed under the First Amendment;
  • Only a quarter of Americans (26 percent) can name all three branches of government.

As compared with results in 2011, the first year of the survey, 33% not being able to name a single branch is steady, but the number that can name all three has declined from 38% to 26%. Further, unprompted, 37% of respondents could not name a single right articulated in the First Amendment.

The next equally depressing result came from the Brooking Institute with a survey of college students and their views on the First Amendment. The most worrisome result on this survey is about 1/5 of college students believe it is okay to resort to violence to shut down a speaker they do not like. Nearly 2/3 of self identified campus Democrats believe shouting down a speaker is okay. And across the board a majority of these students believe if an offensive speaker in on campus there is a legal obligation for the university to provide an alternate point of view. Across the political spectrum students also expressed a desire for a more sheltered college environment that bans “offensive” speech.

The only way the results listed above can be explained is that we have what can only be called a crisis in basic civics education. I learned civics from the day I started school. Knowing what the Stars and Stripes in our flag stand for, how a bill becomes a law, what my First Amendment Rights are and that the Constitution is the supreme law of the land are things I do not remember not knowing. From coloring sheets in kindergarten to Saturday morning cartoons and Schoolhouse Rock, these concepts were reinforced continuously from my early childhood through my post graduate education. Somewhere along the line it be became more important to teach new pronouns like ze/zhe and apologize for our colonial history then it was to raise responsible citizens.

So perhaps Secretary DeVos has one more challenge to add to her list. In addition to restoring due process protections for college age men and expanding educational choice, perhaps we need to consider a national civics curriculum. I am not generally a fan of mandates, but in leaving no child behind and creating a common core of progressive nonsense we have clearly lost sight of the fundamental responsibility to create functional citizens in a republic. We have a national set of criteria to test the knowledge of new citizens. Perhaps we need a national set of criteria to produce our own good citizens. Based not on progressive apology, but rather Supreme Court decisions involving our most basic rights and the Constitution.

Or, we could always make everyone take the citizenship test prior to registering to vote. Don’t @ me. I’m not sure I think it’s a bad idea. Maybe then Carl Reiner couldn’t tweet stupid things like this and get 4,500 faves. Jerk.

Reminder: Democrats Would Cancel Elections Too

Yesterday, I reported on a disturbing poll from the Washington Post that found that more than half of Republicans would be willing to postpone the 2020 election if Trump proposed it in order to make sure no non-citizens vote. The Constitution allows for no such act by the president and U.S. Code as passed by Congress has delegated such decisions to states, but what is most concerning is the trust that Republicans appear to have in a particular man, whether personally or for partisan reasons, rather than our constitutional system. It is the sort of trust in politicians and government uncharacteristic of Americans, and which could put freedom and limited government in jeopardy.

I say that it is uncharacteristic of Americans, but perhaps it isn’t anymore. The instinct to trust “our guy” over a system of the rule of law (not men), check and balances, separation of powers, federalism — in short, our Constitutional system — is present in dangerous doses on both sides of the aisle. Erick was right when he wrote about this bipartisan problem yesterday and pointed out that these headlines about polls like WaPo’s are all the rage now because “they focus on the Republicans right now because of Trump.” So let’s focus on Democrats who do the same.

A little over a year ago, the polling outfit WPA Research found that 67 percent of Democrats “would cancel the 2016 presidential election between Hillary Clinton and Donald Trump if it meant President Obama could serve another term,” as The Hill reported. Fascinating here was the dislike not only in Trump — predictable coming from Democrats — but the comparative dislike of Clinton compared with Obama.

The usual caveats about the reliability of this poll in terms of question ordering and wording should be mentioned; they apply to both this poll and the WaPo poll of which the shocking results from Republicans were reported. That said, let me pose two questions that I posed elsewhere in response to criticisms of the WaPo poll yesterday.

First, if you believe this poll is incorrect, how far off do you think the results are? Second, how far from the truth do the results need to be before you’re comfortable? If only 30 percent of Republicans would postpone an election because Trump said non-citizens would vote, would that not concern you? If only 40 percent of Democrats really favored canceling the 2016 elections and letting Barack Obama serve a third term, would it no longer be scary? Where do you think the number really is, and is it a number that makes you comfortable?

Now, it appears that Republicans have a better excuse for postponing an election — and they were asked about postponing it, not canceling it, as Democrats were in the WPA Research poll. Republican responses correlated with concerns over the number of non-citizens they believed had voted in past elections. The assumptions about the extent of vote fraud were based on wildly speculative survey results, the methodology of which, as I mentioned yesterday, has been thoroughly criticized and can’t hold up to common sense — but at least there was a reason.

That said, I’m willing to bet that the crossover between the Democrats who responded that they would cancel the 2016 election and give Obama a third term and the Democrats who think that “Russia tampered with vote tallies in order to get Donald Trump elected President.” According to a YouGov poll, that’s 55 percent of Democrats, even though there is no evidence that hacking of vote tallies occurred. Democrats can come up with concerns about the validity of election results just like Republicans can, and they can be just as bad.

That said, the real reasons for these responses is probably tribalism. To understand what I’m getting at, here’s another test: if your reasoning for postponing an election or holding a do-over is that it is likely fraudulent — say because of non-citizens voting or because Russia hacked voting machines and changed votes — then you will be okay with doing so regardless of which party proposed it. Republicans: if Barack Obama had postponed the 2016 election because he said illegal immigrants were going to vote in large numbers, would you have supported him? Democrats: if Donald Trump said intelligence reports confirmed a risk that Russian hackers could change votes and postponed the 2020 election until the danger was dealt with, would you support him?

That’s what I thought.

Abraham Lincoln famously said, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.” North Korea’s bellicosity may be grabbing the headlines this week, but if the American system of government continues to lose priority in comparison with a preferred strongman, it would be just as destructive to the Republic, if not more completely. Perhaps before we call the next election the most important in our lifetime, just like the last four, we can recognize that our country does not rise or fall from a single election, but by the continued effort of its citizens to preserve it beyond Election Day. It is time to relearn the lessons of history and liberty.

Go Home, Arianna, You’re Drunk

I can admit that I kind of have a soft spot for Arianna Huffington.  She reminds me of Eva Gabor in Green Acres, with that accent of hers making even the most daffy of her pronouncements  somehow endearing and funny.  I remember one time how she told Sean Hannity that flying private really was environmentally friendly, because those jets were going in her direction anyway.  Now be a dahling and pass the caviar, please, before you start to bore me.

Anyway, I got a pretty good chuckle when I saw this on her Twitter feed:

Why Arianna, how could you be so. . .so. . .so provincial?  I know that you built part of your great fortune by making the writers on your website work for free, but this–this is a stretch even for you!  What about free speech?  What about women’s sufferage?  What happens when you want to declare Donald Trump bonkers and remove him from office under the 25th Amendment?  Would you really want to throw all of that out with yesterday’s foie gras?

Well, before everybody starts getting their Twitter panties in a bind, Arianna was just being cheeky.  It’s her way of responding to Stephen Miller’s smackdown of Jim Acosta yesterday, during which the CNN reporter suggested that the Emma Lazarus poem “The New Colossus,” immortalized at the Statue of Liberty, was somehow the true basis of United States immigration law.  Miller, who was talking up the president’s RAISE act initiative, promptly told Acosta he was full of it, pointing out that the lines “Give me your tired, your poor/Your huddled masses yearning to breathe free” weren’t even written at the time of the statue’s completion, and were only added later.

Arianna apparently thought she could put one over on Miller by saying the same thing about the parts of the Constitution that got added after its original drafting.  Philosophers refer to this kind of argument as reductio ad absurdum.  Arianna probably just thought she was being clever.  To those of us out here in TV land, however, it looks more like she may have been hitting the Perrier-Jouët a little early today.

That’s because, like, the Constitution is law and stuff.  Granted, it’s not the same as a historical poem (although both contain language that is beautiful and profound), but it is the very foundation of our nation’s governance and the earthly guarantor of our God-given rights.  So you can kinda see how there’s a little bit of difference here.

Not to worry, though, Arianna.  We still love you!  But do take care not to overdo the bubbly…

Despite Gorsuch, is SCOTUS Backtracking on the Second Amendment?

On June 26, 2017, the SCOTUS declined certiorari to Peruta v. California, a case that met all the criteria for a review.

Why? After Heller and McDonald, this seemed like the perfect opportunity to clarify themselves, but during the entire legal process, it seemed the courts were acting as though neither were applicable.

The following article is a bit scholarly, but it explains what may be behind this phenomenon. It’s worth bookmarking in your browser for future reference. It is reprinted here with permission of the author, Mike Rana, who publishes his own blog, RightWinger.buzz.



Generally, the high court uses a few criteria to determine what to accept: When there are multiple Courts of Appeal in conflict, multiple state Supreme Courts in conflict, and important federal questions to be answered.  Another consideration is how the case at hand will impact national policy.

The Second Amendment was included in the Bill of Rights at ratification.  In this nation’s 228+ year history, the justices have only been confronted twice with it.  Heller affirmed the civilian right to bear arms for self-defense in the home, but only as applied to the federal government.  McDonald affirmed Heller and incorporated that right to the states, forbidding any city or state from completely banning firearms.

In his and Justice Thomas’ dissent, they said:

“Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the ones below) have produced thorough opinions on both sides of the issue.”

See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–802, 965 N. E. 2d 774, 785–786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010).

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“ Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”).

The Court has not heard arguments in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard arguments in roughly 35 Second Amendment-related cases where the question presented turned on the meaning of the First Amendment, and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment.”

While one could easily write a book on how the judicial branch has cherry-picked from the Second Amendment, but has vigorously protected other fundamental rights (and unconstitutionally created and gone to lengths to defend others) it’s not hard to see how gun rights seem to be the one that legislatures and courts want to ignore.

I offer three hypotheses on why the Court decided to deny certiorari:


Where the SCOTUS is the court of last resort for the nation and has a pint-sized docket compared to the breadth of petitions it receives, typically they only take major things.  The only exception to this rule might be Bush v. Gore.

The issue at hand in Peruta is whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

Precedent has only held that cities and states cannot infringe on the right to bear arms, but as Heller and McDonald tell us, states are allowed to enact reasonable regulations on that right.  As it is right now, five states have banned open carry:  California, Florida, Illinois, New York, and South Carolina, but allow concealed carry with a permit.

For those that want a popsicle headache, the Peterson v. Martinez decision ruled the following:

  • Concealed carry is not a protected right under the Second Amendment due to 19th century case law that has long prohibited the practice.
  • Mr. Peterson’s claim that he’s disarmed when traveling to another state because his permit is not recognized isn’t unconstitutional because the state he traveled to at the time of the claim allowed open carry.
  • Even if Second Amendment case law yielded to protecting the right to concealed carry, the state has an interest in public safety by regulating the issuance of permits on the grounds of legal suitability (I.E. not prohibited by state or federal law).


The Court has had no issue bringing the iron fist to campus administrators who create free speech policies against disagreeable views. The same court has upheld offensive speech such as flag burning and Westboro without flinching, but they seem to be allergic to a piece of metal on the hip.

Other notable rulings include:

The Court has ruled that religious employers can receive an exemption from the healthcare mandate.

The Court has afforded wide latitude to the press in terms of what they publish.

The Court has ruled that abortion is a fundamental right as it applies to privacy and medical treatment.

The Court has ruled on things relating to cellphone searches, vehicle searches, not concocting reasons to stop someone just to pry further, and prohibiting a traffic stop from lasting longer than is reasonable to enforce the violation the person committed.

Multiple lower courts have ruled repeatedly that campus administrators cannot ban political speech on the grounds of a divergent viewpoint.

The Court has ruled that marriage is a fundamental right due to free association and the freedom of choice.

The Court has ruled that speech construed as offensive speech is still free speech.

You can see how these rulings could impact Second Amendment rights, if the court were intellectually consistent. While the Courts haven’t defended gun rights as vigorously as they have free speech, religious freedom, search and seizure, due process, and going as far as equal protection challenges, they have cordially taken cases involving each.

Although Peterson was decided in 2013, the legal framework hasn’t changed.  Concealed carry is still NOT considered a constitutionally-protected form of carry in SCOTUS case law. While the right to carry has been ruled acceptable, it hasn’t been ruled protected.

Some state supreme courts since Peterson have acknowledged, much like Justice Gorsuch did, that the right to carry is inferred from the right to keep and bear; the presence of inconsistent acknowledgement in other courts made Peruta a good candidate for a hearing, and this latest dismissal complicates policy.

For instance:

  • The Constitution protects the right to bear arms, but only with weapons that were in use at the time of the amendment’s passing.
  • The right to bear arms is a fundamental right, but public safety concerns allow the state to regulate it.
  • Citizens cannot carry firearms into government buildings because on the grounds that all should feel safe accessing.
  • Permits are a constitutional exercise of the government’s compelling interest of ensuring public safety and ensuring that prohibited persons aren’t able to purchase firearms.
  • Since a state allows one form of carry, it’s not a total infringement, as state regulations are reasonable for public safety.
  • States aren’t required to recognize each other’s permits on the grounds that one state’s policies and training requirements may be inferior to another’s.


Imagine if your right to petition your state representative required a permit costing $100 in Florida, and was banned unless you held an affiliation with an organization in Washington?

Imagine if your right to be free from search and seizure was fully protected in Montana, but didn’t apply to computers or cellphones in Nebraska?

Imagine if the Boston Globe criticized the governor of Massachusetts and it was protected speech, but the Los Angeles Times mocked California’s governor’s policy on climate change, and the blogger or journalist was charged with a hate crime?

I can’t think of a court in the nation that would tolerate or uphold any of those scenarios since each one is widely understood to be a protected right. Ironically, the Court itself acknowledges that gun rights aren’t an inferior second-class right, yet, here we are.

Given the case law behind our disfavored right, state legislatures have had to do the brunt of the work.  Considering twelve states have enacted permit-less carry with a dozen more with proposals out there, three-quarters of the states allow open carry without a permit, only five states outright banning open carry, and with each successive legislative session, more states are dismantling gun control schemes, what more would the courts need to do considering they’re not authorized or empowered by the Constitution to make law.

While the case law is correct in that no right is absolute, there is no enumerated fundamental right more cherry picked than the right to bear arms – something that needs to change.


Jim DeMint Joins Convention of States to Reinvigorate Tea Party Movement

Past Heritage Foundation president Jim DeMint now has a new role with the Convention of States Project.

DeMint, who was ousted from Heritage Foundation last month, will serve as the senior advisor to the group–which is said to be the fastest growing right-leaning cause. USA Today was the first to break this news on Monday.

“The Tea Party needs a new mission,” DeMint told USA TODAY. “They realize that all the work they did in 2010 has not resulted in all the things they hoped for. Many of them are turning to Article V.”

In the organization’s press release, DeMint had this to say about his involvement in the group:

“I tried to rein in Washington from the House and Senate, but once I realized that Washington will never willingly return decision-making power back to the American people and the states, I began to search for another way to restrain the federal government,” said DeMint. “I am excited to get outside the beltway and work with the grassroots of the Convention of States Project to continue the fight I started almost two decades ago.”

“The time is now for bold action to save America, and Jim DeMint knows how to fight the opposition to do what is best for Nation and the People,” said Mark Meckler, Co-founder of the Convention of States Project. “He is a principled legislative leader and a friend of the grassroots, which makes his addition to the Convention of States Project a natural fit.”

The former U.S. Congressman and U.S. Senator from the Palmetto State launched the Senate Conservative Fund, which helped give rise to lawmakers like Ted Cruz, Mike Lee, Rand Paul, and a whole host of others.

The organization’s goal — as laid out by their 501(c)4 group Convention of States Action– is to “urge and empower state legislators to call a convention of states. Delegates to the convention will have power to propose amendments to the Constitution that would curb the abuses of the federal government. Article V of the Constitution gives them this power; the COS Project will give them an avenue through which they can use it.” Here’s Article V of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Conservatives have a mixed view of this movement. Those who aren’t as skeptical include Mark Levin, Sean Hannity, American economist Thomas Sowell, Sheriff David Clarke, Lt. Bill Cowan, historian David Barton, Ben Carson, M.D., Ken Cuccinelli, Senator Marco Rubio, Senator Ron Johnson, retired U.S. Senator Tom Coburn, retired U.S. Senator Jim DeMint, South Carolina Congressman Jeff Duncan, former Gov. Jeb Bush, former Gov. Mike Huckabee, former Gov. Sarah Palin, Gov. John Kasich, former Gov. Bobby Jindal, Gov. Greg Abbot, and Col. Allen West.

It’s good to see Jim DeMint back in the saddle again. It would be a waste to see him sitting in the sidelines.