We didn't talk about the birthright citizenship case here at Bearing Arms because, well, it's not our wheelhouse. We talk guns and related topics, and unless anchor babies are coming with Glocks, it's just not something we're going to cover.
But Slate seems to have found a reason for us to bring it up.
Yeah, it's Slate. We know how they feel about literally anything at any given time, and the only reason I read that site is to find fodder for making fun of the anti-gun writers over there. It's a jobs program for me, really.
The case they're trying to make now, though, comes from Kavanaugh's concurring decision in the birthright citizenship case. His wasn't the prevailing opinion, so it doesn't have the force of law like the majority's opinion did, but that doesn't mean some don't think there's an opening.
In his opinion, “concurring in the judgment and dissenting in part,” Kavanaugh first agreed with the majority that the executive order’s limitations on birthright citizenship are invalid. But he premised his conclusion only on statutory grounds; specifically, the Nationality Act of 1940. He went on to agree with Thomas’ dissent that the Constitution itself does not grant birthright citizenship to “children born to foreign citizens unlawfully or temporarily in the country.”
Kavanaugh’s reasoning was intricate at best.
He conceded that the 1898 Supreme Court opinion in U.S. v. Wong Kim Ark granted citizenship to all children born in the U.S, with four narrow exceptions, comprising a “closed set” for constitutional purposes: the children of foreign diplomats or enemy invaders, those born on foreign ships in U.S. harbors, and certain Native Americans (all of whom were later granted citizenship by Congress).
Because the 1940 statute was enacted in light of Wong Kim Ark, said Kavanaugh, it codified the same closed set of exceptions, which Trump’s executive order could not change.
Now comes the revealing.
According to Kavanaugh, even Wong Kim Ark’s closed set of constitutional exceptions can be expanded to apply “to new circumstances” based on subsequent developments “largely unknown or unanticipated” by the Framers of the 14th Amendment.
One such circumstance, per Kavanaugh, is the advent of “significant illegal immigration,” which he believes the Framers of the 14th Amendment could not have anticipated and would not have approved. Another is the phenomenon of children born to temporary visitors, given “changes in immigration laws and travel.”
The implication of Kavanaugh’s approach to changed circumstances is undeniable. It stands in distinct contrast to the Supreme Court’s recent rulings on gun control, which have discounted changed circumstances as sufficient to justify restrictions on the right to bear arms.
Now, it would suggest that because of Kavanaugh's comments about what the Framers of the 14th Amendment could and couldn't have foreseen, then that means the fact that the Founding Fathers couldn't foresee semi-automatic firearms means that yes, we can totally restrict those.
It's a novel concept, but it hinges, at least in part, on the idea that the Founding Fathers couldn't foresee technological development, simply because the Framers of another amendment decades later couldn't have foreseen a massive social change throughout the world that would drive millions to try to anchor themselves to the United States, nor the fact that we would become the dominant world power in a matter of a few decades, thus attractive for birthing tourism and illegal immigration.
Those are very different, and I've long refuted the claim that the Founding Fathers couldn't foresee changes in firearm development. They witnessed it during their own lives. Thomas Jefferson himself directed the government to purchase Girardoni rifles for the Lewis and Clark expedition. Those were air rifles that could hold 20 or 22 rounds at a time, then fire them all in a minute. That was a mind-boggling rate of fire at the time, and Jefferson was a smart man who was fascinated by technology. His home at Monticello is damn near a monument to this fact. To say he couldn't see firearms progressing to shoot even faster and potentially reload quicker is mind-numbingly stupid.
That alone makes things very different from the idea of illegal aliens having babies on American soil.
It's a clever try by Slate, I'll grant them. It's not the slam dunk they want to believe, though.
