When Government Ignores The Constitution

Yesterday The Washington Free Beacon posted an article yesterday about an incident in San Jose, California, that should give us pause.

The article reports:

In 2013, Lori Rodriguez called San Jose police to her home because her husband was having a mental health crisis and making violent threats. Seven years later, she is petitioning the Supreme Court to force the city to return her guns.

“It’s not right. I shouldn’t have to do this to get back what’s mine,” Rodriguez told the Washington Free Beacon. “They violated several of my constitutional rights.”

Rodriguez claims police ordered her to open the couple’s gun safe so they could seize all of the weapons in the home after her husband was detained for making threats that the city says included “shooting up schools.” Cops seized not only her husband’s weapons but also the guns that were personally registered to Rodriguez. The city has repeatedly rebuffed her requests to return her property.

The suit is now the sole case with Second Amendment implications remaining before the Court after the justices rejected 10 other gun-rights cases on June 15. Rodriguez’s legal challenge comes as the federal government and a number of states debate “red flag” bills that would allow authorities to deny gun rights to citizens. It has the potential to clarify the extent to which the Second Amendment protects individuals from seizures of firearms.

San Jose city attorney Richard Doyle did not respond to a request for comment. The city defended its actions, saying that authorities were within their rights to confiscate the guns, calling Rodriguez’s claim “borderline frivolous.”

“If the government has lawful authority to effect the forfeiture and observes the requirements of due process in so doing, it has complied with the Constitution,” Doyle said in a brief submitted to the Supreme Court on Wednesday. “The forfeiture does nothing whatever to impair the previous owner’s right to buy, possess, or use firearms, and notwithstanding that the owner may recover the full market value of the guns through their transfer and sale.”

The article continues:

Several of the guns confiscated from Rodriguez by San Jose police have special sentimental value, according to Rodriguez. Police confiscated not only handguns that she and her husband purchased but also a war souvenir inherited from a family member.

“One of them is a gun my great uncle brought back from WWII,” she said. “I really want that one back. You can’t replace that one, obviously.”

Don Kilmer, Rodriguez’s lawyer, said that while the case implicates the 2nd Amendment, in addition to the 4th and even 14th Amendments, it ultimately comes down to an undisputed fact: Lori Rodriguez is not prohibited from owning the firearms San Jose took from her house.

“Her mental health has never been at issue,” Kilmer told the Free Beacon. “The law that the city is holding these guns under says that you can confiscate weapons of people who are mentally ill. Lori is not mentally ill.”

In the years since the initial police call, the Rodriguez family continues to live together, but Lori has taken steps to ensure she can legally own the confiscated firearms. She has transferred all of the firearms into her name and she is the only family member who knows the combination to the gun safe. Her lawyers argue that she is in compliance with all California gun laws—including those for individuals who live with people who can not own firearms themselves.

If her husband was the problem and he had no access to the gun safe, how can the city justify taking her guns away? This is definitely overreach.

Reality vs Practicality

Yesterday Andrew McCarthy posted an article at National Review about birthright citizenship. President Trump is considering ending birthright citizenship by executive order. Actually, it’s not so much a question of ending birthright citizenship as it is reviewing exactly what the 14th Amendment actually says.

The article explains:

My friend John Eastman explained why the 14th Amendment does not mandate birthright citizenship in this 2015 New York Times op-ed. In a nutshell, the Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.

If I am living in Britain on a work visa and have a child, that child is not automatically a British citizen. Why should America do things differently?

The article concludes:

Moreover, it seems to me that, because Congress has weighed in on citizenship by codifying the 14th Amendment, the courts will swat down any executive order on the ground that it exceeds the president’s authority. That is, the courts will not even have to reach the merits of what jurisdiction means for purposes of the 14th Amendment and Section 1401.

We have seen something like this in an area of more certain executive power. President Bush attempted unilaterally to set up military commissions in wartime under his commander-in-chief authority. Even though there was plenty of precedent supporting this, the Supreme Court invalidated the commissions and told the president he needed Congress’s statutory blessing. (Congress later enacted the Military Commissions Act.)

Consequently, if the president actually issues an executive order changing the birthright-citizenship policy, I doubt the sun will set before an injunction is issued. I am in favor of changing the current understanding of birthright citizenship, but I believe such a change must be done by statute to have any hope of surviving court-scrutiny . . . and even then, I give it less than a 50-50 chance.

Stay tuned.