Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Monday, June 11, 2018 :::

A closely divided Supreme Court wrestled Wednesday with a case challenging the legality of President Trump’s travel ban, which restricts travel to the U.S. for foreign nationals from five Muslim majority countries.
This version of the story is from the Washington Examiner
The liberal justices peppered Solicitor General Noel Francisco with questions surrounding a hypothetical president suggested by Justice Elena Kagan.
Kagan posed the example of an anti-Semitic president who made derogatory comments on the campaign trail about Jewish people, which was a veiled reference to Trump’s comments about Muslims while campaigning for president in 2016.
Once assuming the presidency, under Kagan’s example, the president then asks staff to make recommendations and issues a proclamation banning people from Israel from coming to the U.S.
This is an “out-of-the-box type of president” in the hypothetical, Kagan said, before asking what a reasonable observer were to think about such an order.
A reasonable analogy, assuming that Jews in that world are disproportionately involved in terrorist attacks and calling for the destruction of the US and whatnot and that Israel is one of several Jewish countries. But I've been wondering about another analogy a little bit further afield.

Suppose a legally unsophisticated presidential candidate appealing to legally unsophisticated voters makes gun violence a key part of his platform, regularly declaring on the stump that we need to eliminate guns.  Perhaps he denigrates gun owners, making a reference to their "clinging" to their guns.  He gets elected, partially on this basis, and assembles his advisers to start preparing legislation banning guns.

The head of his legal team tells him, "actually, we can't ban guns altogether because of the Second Amendment."

"Really?  I assumed my opponent was making that up."

"No, it's right there between the first and the third.  Also the Supreme Court has ruled that it isn't just decorative, and we have to operate within that interpretation."

"I don't want to evade my constitutional duties, but I really want to prevent gun violence.  It's the right thing to do, and it's part of the reason I was elected.  What options do we have?  Can we ban especially dangerous or scary-looking guns?  Can we restrict ownership by especially dangerous people?  Can we increase enforcement of laws that are already on the books to prevent dangerous people from getting guns?"

"Well, if you hadn't mentioned guns on the campaign trail, you could do any of those.  Alternatively, if you had campaigned on those proposals but had added that you didn't want to ban guns altogether, they would be okay.  But since you said you wanted to ban guns, you can't really do any of those.  Any change you want to implement will have to be made in such a way that a court won't think your real goal is to ban guns."

Is my legal adviser off-base?  Or is it true that a politician who want a policy as close to X as possible without violating the law can get a policy substantially closer to X if he knows what his constraints are?

::: posted by Steven at 11:26 AM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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