Daily Archives: December 8, 2019

by David F. Morrill, W&M Law School | December 3, 2019

Writing his latest book on the First Amendment his fourth in 10 years William & Mary Law ProfessorTimothy Zickdecided to try something a little different. His new volume would be slimmer, more accessible to general audiences, and ripped from the latest headlines.

And as of Oct. 28, its also in eager readers hands.

In "The First Amendment in the Trump Era," Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School, not only examines the growing number of First Amendment controversies in the past three years, but also connects present concerns to episodes throughout American history. He also relates recent First Amendment controversies to the concept of dissent.

Indeed, dissent looms large, beginning when Zick dedicates his book to all the noisy dissenters past, present, and future.

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Zick believes that dissenters deserve a significant amount of credit for doing the hard work of checking governments and influencing citizens, often at considerable cost to their own safety and livelihoods. Although he has not chosen the path of activism, Zicks First Amendment scholarship highlights public contention and dissent.

I am a true believer in the power of dissent to facilitate social, political and constitutional change, Zick said.

Zick wrote his most recent book with minimal legal jargon or extensive discussions of cases or doctrines. He wants it to be read by people whether they support the current president or not.

I think the principles involved in the lessons Im drawing to the current era are useful to know and to embrace regardless of your partisan stripe, Zick said. I didnt want to write a book that was anti-Trump so much as pro-First Amendment.

Cracks in that amendment were forming well before the 2016 election, the result of what Zick refers to as preexisting conditions. Among them were the weakening of the institutional press, heightened political polarization, the rise of the Internet and the distrust of experts and institutionsall of which the President took advantage of when the time arose.

Digitized culture gives you democratic speech cheap and efficient speech, Zick said. But it also gives you a culture that trades on instant conflict, hate and take-downs; its a very mixed bag. Zick added, Trump is an archetype of the erahyper-communicative, hyper-combative and deeply polarizing.

Witnessing increasingly strident speech before and during the 2016 campaign, Zick knew a book was imminent. He noted that candidate Trump incited his supporters to rough up protesters, promised to open up the libel laws, and even proposed shutting down parts of the Internet to thwart terrorists. Many of these themes and patterns continued after Trump became president.

As of a year into his presidency, I thought there was already enough material for a book, Zick said. And the President just kept on talkingand tweeting.

With more and more examples piling up after the publication of the book, and the possibility of a second Trump administration, Zick does not rule out a second edition with, at the very least, an updated introduction or prologue.

I dont know if Trump will emphasize new themes or issues if he is re-elected or just go back to the old attacks, Zick said, So you just might get more examples of things that I point out in the book. Even so, the presidents views on free press and speech, and those of his supporters, are worth examining.

As noted, this book is very different from Zicks previous works. His other books include, "Speech Out of Doors: Preserving First Amendment Liberties in Public Places," "The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties" and "The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights." These books were written primarily for academic audiences. The current book is aimed at a much broader audience and is about events happening in real time.

Its happening in front of you, and that poses challenges for trying to write with some dispatch, but it also means that the book connects to current and timely concerns, Zick said.

Pondering an audience beyond the academy, Zick hopes that readers will learn about the many misperceptions people have about the First Amendment. Its one thing, for example, for a president to speak about a subject from a bully pulpit, Zick says, but its quite another for him to coerce others or regulate speech.

And then there is the misunderstanding about the press in general the idea that there is a separate Constitutional provision the Free Press Clause that gives the institutional press a broad set of rights or immunities. The reality is that the institutional press does not generally have any special rights and privileges. The press rests on far shakier constitutional ground than many Americans realize.

I think its important to remember that the press has always been both problematic and essential, Zick says. Its always had excesses like any other institution, but its also been critically important to self-government, the search for truth, and other First Amendment values.

Above all, Zick hopes readers learn about the value of dissent. He notes that noisy dissent has long been considered part of the American ethos, but the reality is that the citizenry have an increasingly low tolerance for opinions that they dont agree with, from those who attend Trump rallies to students on college campuses.

Although headlines seem more clamorous as a new election looms, Zick nevertheless feels cautiously optimistic, particularly given the evidence that people still exercise their right to disagree and disrupt. He cites as examples the March for Life, the Womens March after the 2016 election, and protests at airports after the initiation of the Muslim travel ban.

These were pockets that suggest dissent is very much alive, and people havent caved into efforts to suppress public contention, Zick said.

Early reviews of "The First Amendment in the Trump Era" have been favorable. Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, says the book makes a truly important contribution to our understanding of the contemporary First Amendment. Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School and past president of the ACLU, calls the book a must read and says, Zicks book shows how the lessons of the past can helpfully guide us through the unique First Amendment challenges we face today.

Zick says his next project might be about public protests. In the meantime, he is enjoying talking about his latest book and sharing it with others.

I have friends and neighbors who are reading it, and asking questions, Zick says. Those conversations have been gratifying, and I hope others will learn about the First Amendment by reading the book.

Zick graduatedsumma cum laudefrom Indiana University andsumma cum laudefrom Georgetown University Law Center, where he received the Francis E. Lucey, S.J. Award for graduating first in his class. While at Georgetown, he was a Notes and Comments editor of theGeorgetown Law Journal. Following law school, he was an associate with the law firms of Williams and Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the Supreme Court of the United States, and Foley Hoag in Boston.

Zick served as a law clerk to the Honorable Levin H. Campbell of the United States Court of Appeals for the First Circuit. He also served as a trial attorney in the Federal Programs Branch of the United States Department of Justice, where he defended the constitutionality and legality of a variety of federal programs and statutes.

A frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns, Zick testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly and petition. He received the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.

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Zick's new book examines the First Amendment in the Trump era - William & Mary News

PLAINVILLE The state says justices should reject a petition by Michelle Carter to appeal to the U.S. Supreme Court, because there is no First Amendment issue to decide in the landmark texting-suicide case.

Lawyers for Michelle Carter, 23, who is currently in jail serving a 15-month sentence, argued that her text messages and calls were protected free speech and that she was not responsible for the suicide of Conrad Roy III.

In their response filed last month, the state Attorney Generals office says the courts verdict in Carters speech is consistent with previous decisions by the nations highest court regarding speech integral to criminal conduct.

Inasmuch as petitioners wanton or reckless conduct causing Roys death was carried out by speech, that speech was therefore un-protected because it was integral to the commission of involuntary manslaughter, according to the state attorneys generals response.

Carter filed what is called a certiorari petition. Experts say the court accepts about 1.2 percent of the petitions they receive.

Roy, 18, of Mattapoisett, killed himself in July 2014 by breathing in toxic carbon monoxide from a gas-powered water pump in placed in his pickup truck. Carter, then a 17-year-old at King Phillip Regional High School, was at her Plainville home at the time and spoke twice by phone to Roy in addition to text messages.

Before Roys suicide, prosecutors argued that Carter and Roy shared an intimate online relationship over several months and that she coerced him into killing himself.

Presiding over Carters jury-waived trial, Taunton Juvenile Judge Lawrence Moniz ruled that Carter caused Roys death when she instructed him to get back in his truck as it was filling with toxic gas after he changed his mind about killing himself.

Carter told friends she could hear the motor from the water pump and Roy moaning before he stopped responding to her calls.

The state Supreme Judicial Court unanimously upheld her conviction in a landmark decision criticized by free speech advocates and legal scholars.

In the state attorney generals 29-page response, it argued that the SJCs decision was correct.

The document was written by state Attorney General Maura Healey, state Solicitor Elizabeth Dewar and assistant attorney general Maria Granick, argues that the justices should deny Carters petition.

In the response, Healey also argued that Carters due process rights were not violated and that the states manslaughter statute is not unconstitutionally vague as applied to her conduct.

Carters lawyers also argued the state SJC created a conflict with at least three other state supreme courts about the application of the First Amendment in such circumstances. But the attorney generals office said there is no conflict. Carter was convicted in 2017 and sentenced in February. Earlier this year, a former Boston College student was indicted by a Suffolk County grand jury for involuntary manslaughter in a similar texting suicide case.

David Linton may be reached at 508-236-0338.

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State argues there is no First Amendment issue in Michelle Carter case - The Sun Chronicle

A pincer of police closes in on the front line camp, built on unceded Indian land north of the Standing Rock Indian Reservation and in the path of the Dakota Access Pipeline, on October 27, 2016. (Image: Law Enforcement Photo / The Intercept)

A recent pair of United Nations climate reports make at least one thing clear: It is critical that we stop constructing new fossil fuels infrastructure.

Unfortunately, some people seem to have misread the warnings: On Nov. 20, Wisconsins governor, Tony Evers, a Democrat, signed a law that, instead of penalizing oil pipelines, penalizes protesters who disrupt the construction of such critical infrastructure.

The new law makes it a felony, punishable by a fine of up to $10,000 and up to six years in prison, to trespass on the property of an oil pipeline or storage facility.

The Wisconsin law did not generate in a vacuum. The bill, which is similar to model critical infrastructure legislation promoted by the American Legislative Exchange Council (ALEC), was a response to the Lakota-led uprising at Standing Rock, N.D., against the Dakota Access Pipeline, during which protesters built a sprawling camp in the pipelines path, chained themselves to construction equipment and marched onto the pipeline right-of-way to halt construction. After Standing Rock, industry groups such as Koch Industries, Marathon Petroleum Corporation and Energy Transfer Partners mounted a lobbying campaign in state legislatures across the country to advocate such anti-protest laws.

The effort has been successful. According to Greenpeace, Wisconsin is the 10th state to institute such a law, and at least 13 others are considering similar measures.

But thats not the only context that matters. The latest U.N. Emissions Gap report, issued Tuesday, made headlines with its bleak finding that because the Earths governments have failed to cut emissions in the last decade, steeper cuts are now required much more quickly if the world hopes to avoid catastrophic climate change. According to the New York Times, the report found that even if every country fulfills its current pledge under the Paris Agreement, average temperatures would be on track to rise by 3.2 Celsius above the baseline temperature at the start of the industrial age. Bleaker still, many countries, including the United States, which has begun to officially pull out of the agreement, are not on track to meet their modest pledges under the Paris Agreement.

Bizarrely, even as they pledge to reduce emissions, many signatories to the Paris climate accord continue to ramp up fossil fuel production. According to the U.N. Production Gap reportissued on Nov. 20, the same day that Gov. Evers signed the bill to squelch pipeline proteststhe Earths governments plan to extract 50% more fossil fuels by 2030 than would be consistent with a pathway to 2 C of warming and 120% more than would be consistent with a pathway to 1.5 C of warming. While the production gap is largest for coal, according to the report:

Oil and gas are also on track to exceed carbon budgets, as countries continue to invest in fossil fuel infrastructure that locks in oil and gas use. The effects of this lock-in widen the production gap over time, until countries are producing 43% (36 million barrels per day) more oil and 47% (1,800 billion cubic meters) more gas by 2040 than would be consistent with a 2C pathway.

The report goes on to explain the maniac logic countries use to justify increasing production:

Many countries appear to be banking on export markets to justify major increases in production (e.g., the United States, Russia, and Canada) while others are seeking to limit or largely end imports through scaled-up production (e.g., India and China). The net result could be significant over-investment, increasing the risk of stranded assets, workers, and communities, as well as locking in a higher emissions trajectory.

In short, if governments really did their jobs, they would criminalize pipelines, not protesters.

In response to the reports, Mitch Jones, climate and energy program director for Food and Water Action, says our most urgent task is to cut off the supply of fossil fuels at their source. He says, We have no time left to waste on neoliberal market tweaks.

Jones, however, holds out hope that the task may yet be accomplished by policy makers and political leaders. Others, especially people in frontline and indigenous communities who witness the destruction of fossil fuel extraction first hand, arent waiting on the government to act. Faced with the abdication by their elected leadership, as detailed in the U.N. reports, these communities are taking the matter into their own hands, and forging a decentralized global movementthat Naomi Klein dubs blockadiato resist, disrupt and defeat new fossil fuel infrastructure. The movement burst into international visibility on the Dakota plains, but it did not stop there. As it were a milkweed pod, the North Dakota authorities who crushed the Standing Rock camps in February 2017 succeeded only in spreading the seeds far and wide.

Given this context, the Wisconsin law and others like it should be seen for what they are: maneuvers in the climate war, made by mad men intent on strapping us all into their doomsday machine and sealing the exits.

These laws are evidence, also, of how afraid they are that the blockade-at-the-source tactics that have proliferated since Standing Rock just might work.

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First Amendment Loses as Pipeline Industry Scores Another Win in Wisconsin - In These Times

A former Fort Worth teacher argued in an appeal to the state that her tweets asking President Donald Trump to "remove" undocumented immigrants from her school were protected speech.

The Texas Education Agency agreed.

In a decision issued Nov. 25, Texas Commissioner of Education Mike Morath wrote that the teacher, Georgia Clark, should get her job back at Carter-Riverside High School and receive back pay and benefits, or receive one year's salary.

Clark and her attorney could not be reached for comment.

Siding with Clark, Morath rejected Fort Worth ISD's argument that Clark waived her First Amendment rights upon signing an employment contract.

Clark was fired after sending a series of tweets to the president in May, writing that Fort Worth ISD "is loaded with illegal students from Mexico."

"Anything you can do to remove the illegals from Fort Worth would be greatly appreciated," she tweeted to Trump. Hispanic students account for almost 87% of enrollment at Carter-Riverside High School, according to state data.

Clark later appealed the decision to the Texas Education Agency, which found that the school district did not show "good cause" for Clark's firing.

Morath ruled that Clark's tweets were "unique" because she sought Trump's help with issues that he "has responsibility for" and because her Tweets were not sent while on duty or as part of her job.

Morath also cited Clark's right to present grievances to the government and warned that a ruling against Clark may have "a chilling effect" by discouraging public employees from communicating with elected officials.

The former high school English teacher, who was fired in June, said she thought the tweets she sent to the president were private, according to a document obtained by the Fort Worth Star-Telegram. Clark's lawyer, Brandon Brim, could not be reached on Monday.

An independent examiner assigned by TEA recommended the school district reverse its decision because its rationale was "not supported by the evidence."

Robert C. Prather Sr., the examiner, wrote in August that Fort Worth ISD violated Clark's First Amendment rights by moving to fire her, and that her tweets were not "racially insensitive and/or discriminatory."

But in September, Fort Worth school trustees upheld their decision to fire Clark, precipitating her appeal to the Texas education commissioner, according to The Dallas Morning News.

In an interview that month with WFAA, Clark said she stood by her tweets.

Fort Worth ISD officials said they would appeal Morath's decision, adding they believe they have good cause to fire Clark.

"We stand by our decision because we firmly believe this is in the best interests of all students," Superintendent Kent P. Scribner said in a statement.

On Monday, the school district had no comment beyond its initial statement.

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Texas wants teacher Georgia Clark reinstated after firing over tweets - The Texas Tribune

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include The Emperor of Ocean Park, and his latest nonfiction book is Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.

Salacious books have a long history of getting their authors into trouble

Photographer: Derek Berwin/Hulton Archive/Getty Images

Photographer: Derek Berwin/Hulton Archive/Getty Images

Can a public employee be fired for penning a memoir about her days as a phone sex operator? Thats no law classroom hypothetical. Its a serious question, answered in Harnishfeger v. United States, a decision handed down by the U.S. Court of Appeals for the 7th Circuit earlier this week. The court supported the employee, but the panels struggle to reach that outcome helps elucidate the difficulty of government workers free speech rights.

The case involved one Amy Harnishfeger, author of a pseudonymous volume entitled Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations, self-published in 2016 as an e-book on Amazon. The monsters of the title, the court tells us, are the men (and one woman) who were her clients. The book is evidently a sharp critique of the phone-sex industry. Writes the court: Harnishfeger was horrified to hear what some of the callers would fantasize to her about, including sexual abuse of children.

A month after Conversations with Monsters debuted, the author reported for duty with the Indiana National Guard. Her supervisor, Lieutenant Colonel Lisa Kopczynski, soon became aware of the tome, and apparently was sufficiently disturbed to demand that Harnishfeger be removed from her National Guard posting by the Corporation for National and Community Service, the federal agency that had arranged the stint. The agency complied, and shortly thereafter dropped her from its roster.

Harnishfeger sued, claiming among other things a violation of her First Amendment rights. The trial court threw out the lawsuit, but the 7th Circuit partially reinstated it. The dispute between the courts wasnt over whether Conversations with Monsters was an exercise of free speech plainly it was. The disagreement was over how to strike the balance between Harnishfeger's rights and the National Guard's interest in avoiding disruption and maintaining a positive public image. The path to victory might seem easy, but there are tricky barriers to circumvent. One of these is the U.S. Supreme Courts 2004 decision in City of San Diego v. Roe. That case involved ... well, lets be a little shy and let the 7th Circuit summarize Roes facts for us:

The plaintiff in Roe was a San Diego police officer who sold videos of himself on an online marketplace, stripping and masturbating in a police uniform and pantomiming police work.

He was fired, and, like Harnishfeger, claimed that his First Amendment rights had been violated. The justices unanimously rejected his claim: Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer.

Sometimes, we free speech absolutists have to defend what might be called Addams Family behavior expression thats creepy and kooky. So it should come as no surprise that even in the case of Roe, Im not entirely persuaded that the justices were right. Scholars who have called for strong First Amendment rights for public employees have tended to focus on such issues as exposing official corruption or disclosing that the government is lying. But sometimes the ground for defending the employee must surely be simply that her speech is none of the governments business.

Yes, a public employee must give up some rights in exchange for the job, and the Supreme Court is surely correct that as the distance between job and speech narrows, so must the protection. Thus the DMV should have no power to fire an employee because he turns out to be a white supremacist, but can surely discipline him if he shouts the n-word at black drivers waiting in line.

Where does Conversations with Monsters fall on the spectrum? The trial court concluded that the book does not address matters of public concern but instead simply recites (in graphic, explicit and profane language) phone sex conversations in which Harnishfeger participated involving fantasies of sexual assault, incest, pedophilia, sexual abuse, and violence directed toward children. According to the trial court, mere descriptions of sexual exploits alone are not serious or portentous enough to outweigh the National Guards interest in preventing potential disruption in the workplace.

The court of appeals did not so much dispute this argument as circumvent it. The panel pointed out that the principal harm to which the defendants pointed was to the image or reputation of the National Guard. Given the difficulty of even discovering the books existence, however, the judges concluded that it was highly unlikely that it could have reflected anything at all about the Guard, positive or negative. Given this conclusion, the interest of the National Guard was easily outweighed by Harnishfegers. Thus the lawsuit the trial court had dismissed will proceed to trial (or, more likely, be settled in Harnishfeger's favor).

But let's not rush out to celebrate a First Amendment victory just yet. A plausible implication of the panels reasoning whether intended or not is that had Conversations with Monsters become a big bestseller, the National Guard would have had a stronger case. Thus the decision is hardly a grand triumph for the robust view of public employee rights. As I have argued elsewhere, we should be wary of supporting free speech with arguments that turn on the smallness of the likely audience.

I am not suggesting that the National Guard doesnt have a point, or that there arent cases in which the employee ought to lose because of the harm done to the Guard or its mission. But that's the point. In our speak-your-mind era, controversial online speech by government employees is only going to increase. Bytiptoeing around the central First Amendment question, the 7th Circuit missed a chance to offer real guidance on where to draw the line.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:Stephen L. Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:Sarah Green Carmichael at sgreencarmic@bloomberg.net

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A Phone-Sex Memoir Tests the Limits of Free Speech Rights - Bloomberg

If you listened to House Speaker Nancy Pelosi's addressonThursday, you might have thought she was announcing an armed revolution. She opened with "Let us begin where our founders began in 1776. When in the course of human events it becomes necessary for one people to dissolve the political bonds which have connected them with another."

The good news is that there will be no revolution for now. Thespeaker was just awkwardly trying to equate President Trump with Great Britain's"oppressive monarch" George III and Democrats' impeachment efforts with the founding of our republic.

Pelosi wrapped herself so tightly in our nation's founding documents that in her first 90 words alone, she explicitly mentioned the Declaration of Independence, the Constitution, and "our founders," while quoting both the Declaration and Article II of the Constitution. She then went on to cite the Constitution'sseparation of powers and its check and balances, as well as thenames and wise words of no less than fourfoundingfathers, allas justification for Democrats' impeachment proceedings.

IAN PRIOR: SCHIFF'S IMPEACHMENT DRIVE SHOWS CONGRESS CAN INVADE YOUR PRIVACY, GETTING PHONE AND OTHER RECORDS

Pelosi even cited "our founders firm reliance on divine providence," a profound irony for the leader of a party that considers a display of the Ten Commandments on public property to be a threat to freedom.

Pelosi's partner in impeachment,Rep. Adam Schiff,and the three anti-Trump law professors who led off the Judiciary Committee's impeachment hearings on Wednesday were equally eager to blanket theirpassion fordrivingthe president from office with the words of thefounding.Rarely have the leaders of the Democratic party and their allies expressed such reverence for the founding documents and their authors. If only it were genuine.

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What this crowd usually saysaboutthe Constitutionisthat it'sa deeply flawed document,written by an oppressor class of dead white males,that ratified both the institution of slavery and the oppression of women.

Instead of lauding the Constitution as they didlastweek,they typically portray it as a document so obsolete that its text should not be taken literally. They embrace an alternative "living Constitution" which means not what the founders intended it to mean but what the more enlightened activist judges of today think it ought to mean.

They complain bitterly that the founding fathers stuck us with the "undemocratic" Electoral College and a Senate that gives small, deplorable red states the same number of senators as large, enlightened states like California and New York. They bemoan the Constitution's lack of "positive rights" such as rights to healthcare and welfare;find rights to abortion, same-sex marriage and the like in the document's "penumbras";and disparage the unfashionable parts of the Bill of Rights.

Pelosi and company's attempt to tie their impeachment efforts to the founding is part of a larger Trump-era phenomena in which haters of the president wrap themselves in Constitution-evoking clichs while paradoxically displaying an increasing disregard for the actual Constitution.

You'll never hear thespeaker and her allies cite the Second Amendment's right "to keep and bear arms" unless it's to argue that those words don't mean what they say. Similarly, they increasingly distance themselves from the First Amendment's guarantee of freedom of expression and religion, which they see a dangerous enabler of politically incorrect speech and discrimination. And that's just the first two amendments in the Bill of Rights.

Pelosi and company's attempt to tie their impeachment efforts to the founding is part of a larger Trump-era phenomena in which haters of the president wrap themselves in Constitution-evoking clichs"democratic norms," "abuse of power," and "above the law," are some of their favoriteswhile paradoxically displaying an increasing disregard for the actual Constitution.

Two examples of this uneasy relationship with the Constitution are Democrats' unyielding refusal to accept the legitimacy of the last presidential electionunseen since President Lincoln's election triggered the Civil Warand their refusal to recognize the supremacy of federal immigration law in sanctuary cities and states. By thumbing their nose at the Constitution's Supremacy Clause, they evoke memories of the cries for "states' rights" in the Jim Crow era.

Another troubling example is use by the president's opponents of politically motivated legal standardswhat I call "Trump Law." This affront to the rule of law is well illustrated by novel, creatively broad definitions of criminal offenses (concerning bribery, perjury, obstruction of justice and the like) that are intended to apply only to this president and his associates and that threaten the constitutional guarantee of due process.

Equally illustrative is thecreationbyliberal federal judgesofunprecedented,non-deferentialstandards for enjoining presidential actions, thusunderminingthe Constitution'sseparation of powers.

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Several pages could be filled with additional examples of Democrats' increasingdisregard forthe Constitution. But it should already be clear that the reverencefor the Constitution and its authors displayed byPelosi and her allies this week is,at best, highly selective.

Solet's take that reverence for what it's wortha reminder that the words of the founding fathers are still persuasiveand hope it gives the left just a little bit of pause the next time theyre tempted to disparage the Constitution.

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Curt Levey: Trump impeachment drives Democrats' love of Constitution here's how they really feel - Fox News

Guns: when and how to regulate them. It's one of the biggest issues across the country. But the U.S. Supreme Court has rarely weighed in on the issue. In modern times, it has ruled decisively just twice. Now it's on the brink of doing so again.

With the retirement of Justice Anthony Kennedy, there now are five conservative justices who may be willing to shut down many attempts at regulation, just as the NRA's lock on state legislatures may be waning.

For the past decade, the court has been wary of gun cases. In 2008 the court ruled for the first time that the Second Amendment right to bear arms is an individual right. Two years later, the court said that right applied to state laws, not just federal laws regulating gun ownership and use. Since then, however, there has been radio silence as the justices have turned away challenges, one after another, to gun laws across the country. Until now.

On Monday the court hears arguments in a case from New York, a city and a state with some of the toughest gun regulations in the country. Several gun owners and the NRA's New York affiliate challenged the rules for having a handgun at home. They contended the city gun license was so restrictive it was unconstitutional.

Specifically, they said the state law and city regulations violated the right to bear arms because they forbid handgun owners from carrying their pistols anywhere other than seven firing ranges within the city limits. That meant that pistol owners could not carry their guns to a second home, or to shooting ranges or competitions in other states nearby. The lower courts upheld the regulations as justified to protect safety in the most densely populated city in the country.

But when the Supreme Court agreed to hear the gun owners' appeal, the state and the city changed the law to allow handgun owners to transport their locked and unloaded guns to second homes or shooting ranges outside the city.

"Won't say 'yes' for an answer"

With those changes, the first question Monday will be whether the case is moot and should be thrown out because New York has already given the gun owners everything they asked for in their lawsuit.

"This is an instance where it appears the petitioners won't say 'yes' for an answer," says James Johnson, counsel for the city of New York.

But former Solicitor General Paul Clement, who represents the gun owners, counters that the amended regulations still give the city too much power to regulate.

"The city of New York never expressed any doubt about the constitutionality of these regulations when they were winning in the district court and the court of appeals," argues Clement. "And then lo and behold, all of a sudden the city decides you know maybe we don't need these regulations after all."

And, he observes, the city is still defending the original regulations.

The city is indeed doing that because the justices refused in October to throw the case out on mootness grounds, opting instead to hear the mootness arguments today, along with the direct challenge to the regulations themselves.

Defending nonexistent laws

That does put the city in a weird position. The city is forced to defend regulations that are no longer in place, and that it claims it has no intention of reviving.

"It's our position that by justifiably restricting the ability to carry firearms broadly on the streets of New York, it contributes to making the city safe," says Johnson.

And there's the rub. What did the Supreme Court mean in its 2008 decision when it said that the right to bear arms is an individual right? Back then, Justice Antonin Scalia, writing for the five justice court majority, framed the right most explicitly as the right to own a gun for self-defense in one's home.

Moreover, the opinion contained a paragraph of specific qualifiers that, according to court sources, were added to Scalia's opinion at the insistence of Justice Kennedy, who provided the fifth vote needed to prevail in the case. The court said, for instance, that its opinion "cast no doubt on" longstanding bans on "carrying firearms in sensitive places such as schools and government buildings, or bans on dangerous and unusual weapons."

"It will make a difference that Justice Kavanaugh is on the court."

But Kennedy who insisted on that limiting language has now retired, replaced by Justice Brett Kavanaugh. And Kavanaugh, as a lower court judge, wrote in favor of expansive gun rights.

"I do think it will make a difference that Justice Kavanaugh is on the court," says the gun owners' Clement.

He notes that not only does Kavanaugh have a record sympathetic to broad gun rights, but that the new justice was constrained by the court's precedents when he sat on the lower court.

"Now he can interpret the Constitution in a different way in his new perch," says Clement. "He's somebody who I would think is going to be receptive to arguments that the Second Amendment fully protects an individual right and is not strictly limited to the home."

Manhattan: 1.6 million residents in 23 square miles

New York argues that the history of gun ownership dating back to Colonial times shows that in this densely populated city, the law forbids the discharge of firearms on "any street, lane, alley, garden or other places where people frequently walk." And by 1784 the state regulated the storage and transport of gun powder, too.

Today, as the city observes in its briefs, the city is far and away the most densely populated city in the country, with 27,000 residents per square mile. Manhattan alone packs around 1.6 million residents into 23 square miles, and that population doubles every weekday with commuters. These people, plus tens of thousands of tourists, move through through the city's crowded streets, traveling "to, near and around a staggering concentration of sensitive places such as schools, daycare centers, government buildings, playgrounds and places of worship" all places that the Supreme Court seemed to say in 2008 are legitimate places to ban guns.

Countering that argument, lawyer Clement maintains that the Founding Fathers never intended the right to own a gun to be limited to the home. At the very minimum, he notes, our Founders allowed gun owners to carry their firearms from one place to another.

Libraries are not lethal

Like any good advocate, Clement is offering the justices alternative routes to a gun-friendly ruling.

"They could say the Second Amendment is not limited strictly to the home and therefore this regulation has to go," says Clement. Even that, he would see as a major victory.

The alternative and broader ruling, he says, would treat the right to own a gun in the same way that limits on free speech are treated. With considerable suspicion.

"I don't think anybody would think that if the city of New York said, you know we have seven perfectly nice libraries in the city of New York and there's really no reason for any of you to go to libraries in New Jersey," posits Clement. "Everybody would recognize that that's clearly a First Amendment problem."

Johnson, the city's lawyer, dismisses that analogy, noting that libraries have no "lethality."

"It kind of falls on me"

And that's something at least one of the individual plaintiffs on the gun-rights side thinks. Retired NYC bus driver Efrain Alvarez is one of the three individuals joining the New York State Rifle & Pistol Association to challenge this law.

"If a bad apple grabs a gun and he does something stupid, it kind of falls on me because I'm part of what's going on," Alvarez said in an interview with Reuters. In that same interview, he said he admires the NRA but sometimes disagrees with its policies.

Alvarez has had his handgun license suspended twice in the past decade. Most recently the city confiscated 45 firearms, including five handguns, from a steel vault in his back bedroom. But he likely will get them back, as he says he has accepted a plea deal from the Bronx district attorney that would drop the most recent charge against him if he is not arrested for six months.

None of this is actually related to the current Supreme Court case. The 64-year-old bus driver is a gun enthusiast and hunter who told Reuters that he joined the lawsuit because he thought it was ridiculous that he could own a handgun but not be able to travel with it to compete.

Lawyers for Alvarez and the lawyers on the other side know that if the Supreme Court rules on the merits of the now-defunct regulations, it will be a very big deal for one simple reason: It will be only the third decision on gun rights in modern times, and it will inevitably lay down some new guidelines for lower courts to follow when gun regulations are challenged.

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Gun Rights Case Is First Before The Supreme Court In A Decade - NPR