Making a legal case against the National Firearms Act (NFA) of 1934 and the Firearm Owners Protection Act (FOPA) of 1986 on constitutional grounds involves a critical analysis of their potential violations of the Second Amendment, the Fifth Amendment, and principles of due process and equal protection. This argument would seek to challenge the constitutionality of these laws by interpreting them through a lens that emphasizes individual rights, limited government, and the preservation of fundamental freedoms as guaranteed by the U.S. Constitution.

I. Introduction The National Firearms Act (NFA) of 1934 and the Firearm Owners Protection Act (FOPA) of 1986 are two pieces of federal legislation that regulate certain firearms and firearm accessories, including machine guns, short-barreled rifles and shotguns, silencers, and other "Class III" weapons. These laws impose strict controls on the sale, transfer, and ownership of these firearms, requiring registration, background checks, and tax stamps.

While these regulations were enacted in response to concerns about crime, particularly in the wake of Prohibition and the rise of organized crime, a legal argument could be made that these laws are unconstitutional, particularly in light of evolving interpretations of the Second Amendment and broader constitutional principles.

This paper will examine why both the NFA of 1934 and the FOPA of 1986 might be unconstitutional based on the following arguments:

Violation of the Second Amendment: The right to keep and bear arms is an individual right, and the NFA and FOPA violate that right by unduly restricting certain types of firearms without adequate justification.

Excessive Government Overreach: These laws represent an infringement on individual liberties and overstep the government's role, violating principles of limited government and personal autonomy.

Equal Protection and Due Process Violations: The laws discriminate against certain classes of weapons and their owners, creating unequal treatment under the law and imposing unnecessary burdens on lawful gun owners.

II. Second Amendment: An Individual Right to Bear Arms The Second Amendment of the U.S. Constitution states: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This amendment protects the right of individuals to possess firearms, and this right has been reaffirmed by the U.S. Supreme Court in several key rulings, particularly in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

A. Heller and McDonald: Individual Right to Keep Arms In Heller, the Supreme Court unequivocally held that the Second Amendment protects an individual’s right to possess firearms for self-defense and other lawful purposes, independent of service in a militia. Justice Scalia, in the majority opinion, confirmed that the right to bear arms is fundamental and that “the Second Amendment protects the right to possess and carry weapons in case of confrontation.” This case strongly supports the argument that laws regulating access to firearms must pass strict scrutiny, meaning they must serve a compelling government interest and be narrowly tailored to achieve that interest.

B. NFA and FOPA as Overbroad Restrictions The NFA of 1934 imposes heavy taxes and registration requirements on certain types of firearms, including automatic weapons and short-barreled rifles, making them prohibitively expensive and difficult for ordinary citizens to legally own. Similarly, the FOPA of 1986 banned the civilian manufacturing or transfer of new machine guns, effectively freezing the number of registered fully automatic firearms at the 1986 level.

Critics of these laws argue that they violate the Second Amendment because they are overbroad and do not meet the stringent standards set by Heller and McDonald. The Second Amendment should be interpreted as a protection for all firearms that are commonly used for lawful purposes, including self-defense and hunting. Machine guns and short-barreled rifles, like other firearms, can serve these purposes and, therefore, should be constitutionally protected.

The NFA and FOPA’s restrictions on these weapons do not align with the principles of individual self-defense. They do not serve a sufficiently compelling government interest and are overly broad in their limitations. As such, these laws may violate the Second Amendment by effectively denying law-abiding citizens the ability to exercise their fundamental right to bear arms.

III. Excessive Government Overreach and the Principle of Limited Government The U.S. Constitution is built on the premise of limited government. The Bill of Rights was created to protect individual liberties from government overreach, including overreaching laws that infringe on fundamental freedoms. Gun ownership is a right protected by the Second Amendment, and therefore, the federal government must have a compelling reason to restrict this right.

A. NFA and FOPA as Overreaching Regulations The NFA and FOPA impose burdensome regulations that undermine the foundational principle of limited government by excessively regulating what type of arms law-abiding citizens may possess. Under these laws, individuals must go through extensive bureaucratic procedures to legally own certain firearms, which may involve a background check, a tax stamp, and potentially long waiting periods. The FOPA further restricts ownership by prohibiting the manufacture of new machine guns for civilian use.

These laws do not appear to be narrowly tailored to a legitimate, compelling government interest. While the government may have an interest in preventing crime, the NFA and FOPA apply to all individuals, regardless of criminal intent or background. They effectively create a de facto ban on entire categories of firearms, even for law-abiding citizens who seek to use them for legitimate purposes, including self-defense.

B. The Government’s Role and the Protection of Individual Rights The role of government in regulating firearms should be limited to ensuring that firearms do not fall into the hands of dangerous individuals (such as convicted felons or those with restraining orders), but not to limit the rights of lawful gun owners. The NFA and FOPA violate this principle by regulating lawful gun owners' access to certain types of firearms, thus expanding government power unnecessarily.

The NFA’s restrictions on automatic weapons and short-barreled firearms disproportionately affect law-abiding citizens and do not effectively address the root causes of gun violence, such as criminal behavior or unlawful possession of firearms. These restrictions are a significant overreach by the federal government, especially when the Second Amendment guarantees an individual right to possess firearms for self-defense and other lawful purposes.

IV. Equal Protection and Due Process Violations The Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property, without due process of law. Furthermore, the Fourteenth Amendment guarantees equal protection under the law.

A. Discriminatory Classification of Firearms The NFA and FOPA create a discriminatory classification by regulating certain types of firearms (e.g., automatic weapons) while allowing others (e.g., semi-automatic rifles or handguns) to be widely owned and easily purchased. These laws effectively treat similar weapons—some of which serve the same purposes in terms of self-defense or hunting—differently under the law.

For instance, fully automatic firearms (regulated under the NFA) and semi-automatic firearms are both capable of self-defense, yet the government has arbitrarily imposed heavy restrictions on the former while allowing greater freedom for the latter. There is no compelling justification for treating these weapons differently, and as such, the NFA and FOPA may violate the equal protection clause by subjecting lawful citizens to arbitrary discrimination based on their choice of firearm.

B. Due Process Violations The NFA also raises due process concerns by creating a complex and opaque regulatory framework that requires individuals to jump through numerous bureaucratic hoops in order to legally own certain firearms. This system has been criticized as too burdensome, confusing, and prone to errors. Such regulatory complexity makes it difficult for individuals to understand what is required of them, violating the principle of due process by depriving gun owners of clarity and certainty in the law.

V. Conclusion The National Firearms Act (NFA) of 1934 and the Firearm Owners Protection Act (FOPA) of 1986 impose broad and excessive restrictions on lawful firearm ownership that violate several constitutional principles, including:

The Second Amendment’s protection of an individual right to own firearms. The principle of limited government and the overreach of federal regulations. Due process and equal protection under the law, by treating certain types of firearms owners unfairly and creating unnecessary regulatory burdens. The NFA and FOPA impose a significant burden on the constitutional rights of law-abiding gun owners without justifying these restrictions through compelling government interests. Therefore, these laws should be reevaluated and potentially declared unconstitutional.

It seems to me like this is something that should require an amendment to the state constitution given that the process is likely proscribed in the state Constitution.

It seems like a mere law isn't enough here, and in Arizona and Wisconsin, they attempted to do this via amendment, though it was clear they didn't have the votes either way which they may end up having in NC.

Would this fly constitutionally, and would this potentially be a federal Supreme Court issue or would it stay with the state of NC regardless of how their Supreme Court rules?

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I know it does not occur today and that instead Supreme Court justices are assigned to administer certain judicial circuits. However, I am curious if it is still a possibility for them to do so. Basically, is there any law that prevents justices from doing so? Here's a link that explains what "riding the circuit" is: https://civics.supremecourthistory.org/article/riding-the-circuit/

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I get that a lot of people don’t think it’s even possible for the 14th Amendment to be reinterpreted in a way that denies citizenship to kids born here if their parents aren’t permanent residents or citizens.

But there are conservative scholars and lawyers—mostly from the Federalist Society—who argue for a much stricter reading of the jurisdiction clause. It’s not mainstream, sure, but I don’t think we can just dismiss the idea that the current Supreme Court might seriously consider it.

As someone who could be directly affected, I want to focus on a different question: if the Court actually went down that path, would the decision be retroactive? Would they decide to apply it retroactively while only carving out some exceptions?

There are already plenty of posts debating whether this kind of reinterpretation is justified. For this discussion, can we set that aside and assume the justices might side with the stricter interpretation? If that happened, how likely is it that the decision would be retroactive?

There has been recent discussion on whether President Trump may run again for a third term, cf:

• NYTimes on BlueSky: President-elect Donald Trump has mused more than once that he might like to run for re-election again in 2028 and seek a third term. The Constitution's 22nd Amendment does not allow it.

To which court news reporter Gabrial Malor responded with

Ugh. SCOTUS just instructed that states lack the authority to keep federal candidates off the ballot to enforce the Fourteenth Amendment.

It is not a stretch to worry that a 2028 SCOTUS would similarly decide that states lack the authority to enforce the Twenty-Second Amendment.

As a textual matter, there is no affirmative grant of state power in the Twenty-Second Amendment either.

So SCOTUS would either have to somehow distinguish Trump v. Anderson or overturn it. Like I said, may the odds be ever in our favor.

The text of the amendment provides:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Which presents the interesting question as to how far the 22A reaches.

• Theory 1: Full State Discretion

This is probably the theory people generally think of, whereby a two term president cannot even be on the ballot to get votes nor would any write ins count for them. It's the same as states preventing non-US born citizens from appearing on the ballot (see: Cenk Uyghur in Arkansas)

• Theory 2: Restraint on the electoral college

I haven't seen this view however, it could be conceivable that the reading of the amendment is only a restriction on the electoral college as it says no person may be "elected" more than twice and in the U.S., we do not "elect" presidents.

I think the amendment would have been better served if it was phrased as an additional qualification like the citizenship requirement:

No person shall qualify for the office of President of the United States who has been elected to the office of President more than twice

What do y'all think?

I'd also like to be told if my layman's understanding is correct or not?

My understanding...

"Individuals can allocate their money to any cause they prefer and that nothing should prevent individuals with similar causes grouping together and pooling their money."

Edit: I failed to clarify that this was not about direct contributions to candidates, which, I think, are correctly limited by the government as a deterent to corruption.

Edit 2: Thanks to everyone that weighed in on this topic. Like all things political it turns out to be a set of facts; the repercussions of which are disputed.

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He has previously served as solicitor general for the Missouri state Supreme Court for six years (appointed by Josh Hawley), and is a former US Supreme Court clerk with Justice Antonin Scalia.

Sauer represented Trump in his Supreme Court case earlier this year, when the court granted presidents partial immunity from criminal prosecution (he was the lawyer who answered in the affirmative when asked by the DC Circuit whether the President should have immunity for ordering SEAL Team Six to assassinate a political opponent). He also represents Trump in the appeal of his New York civil fraud case, in which Trump was ordered to pay a $450 million fine, plus interest.

More info can be found here, and I welcome others posting non-wiki sources with further information.

Theodore "Ted" Olson passed away today at 84. He argued around 60 cases before the Supreme Court over the course of his entire career, from 1983 to 2019. He was also the named respondent in Morrison v. Olson (1988).

The whole list of his arguments can be found here. Some of the most notable include: US v. Virginia, Bush v. Gore, Grutter v. Bollinger, Ashcroft v. ACLU, Rasul v. Bush, McConnell v. FEC, Cheney v. District Court, Citizens United v. FEC, Hollingsworth v. Perry, and Murphy v. NCAA. His last argument was in DHS v. Regents of the University of California.

So Trump wants to end birthright citizenship for the children of undocumented immigrants. He thinks he can do it without a constitutional amendment, so I decided to research what kind of argument his administration would likely make.

To recap, the 14th amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States

From what I understand, the plan is to use “subject to the jurisdiction thereof” as a loophole.

When researching this I found an old article from the Heritage Foundation (which wrote/sponsored Project 2025) about the issue.

https://www.heritage.org/immigration/commentary/birthright-citizenship-fundamental-misunderstanding-the-14th-amendment

They claim that the “jurisdiction” phrasing is meant to exclude basically everyone who’s eligible for another country’s citizenship:

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

(This does NOT mean the Trump admin will make the same argument, but there’s a chance.)

Of course, this is not what was decided on US v. Wong Kim Ark, but maybe the plan is to hope SCOTUS overturns it.

One alarming thing is that the implication of this argument is much broader than Trump’s proposal. It would imply that ANYONE with another country’s citizenship cannot be a natural-born or naturalized American citizen.

The article doesn’t mention this implication. It only says that the children of undocumented immigrants or students in the US shouldn’t be US citizens, but the same arguments apply to anyone else with dual citizenship.

Ironically, this would likely apply to Alito, since he is probably an Italian citizen, even if not officially registered or recognized.

What’s the chance that SCOTUS will actually agree with this argument? Could dual citizenship be in peril?

In the Wong Kim Ark decision, the Court held that “virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory” are US citizens, according to Wikipedia. So the only other possible way to exclude the children of undocumented immigrants from citizenship is to claim they’re enemy forces in hostile occupation of US territory. Is this what they’re likely to claim instead?

I saw the post on here a few days ago regarding the possibility of repealing birthright citizenship and I decided to make an effort post about it. In this post, I’m mainly gonna be talking about/to two people who I feel have contributed to this nonsense the most.

Lindsey Graham

And Donald Trump

So lock in chat we got some stuff to discuss

Senator Lindsey Graham

Mr. Graham hi. You don’t know me and I don’t like you. I wanted to talk to you about this bill you introduced and with this bill you aim to restrict birthright citizenship. Ok so you’re taking congressional action to restrict or regulate something that you see as a problem. Great great see the problem is with the language of this bill.

DEFINITION.-Acknowledging the Citizenship Clause in section 1 of the 14th Amendment to the Constitution of the United States, a person born in the United States shall be considered 'subject to the jurisdiction' of the United States for purposes of subsection (a) (1) if the person is born in the United States of parents, one of whom is—

"(1) a citizen or national of the United States;

"(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States;

"(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).".

Graham seems to be trying to step around this section of the constitution with this act. He is not arguing to try to repeal the amendment but rather is trying to reform an act of congress to get the result he wants. Unfortunately, the text of the Constitution does not allow for such a thing to happen because as outlined in the text:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

See it says all people born or naturalized IN THE UNITED STATES meaning that from a plain text reading anyone born here is a citizen. There’s no getting around this. With this bill you’re trying to step around the plain text of the constitution and that’s where I have a problem. And I'd imagine the current Supreme Court as well as other courts would take issue with this as well. As a matter of interpretation and settled law this debate has been squarely put to bed by the legislative history and even the common law understanding. See in order to do something like this you would need a constitutional amendment. Not trying to amend the 1965 Immigration and Nationalities Act that simply wouldn’t work. Something like that would get smacked down by a federal court of law. Being that it essentially ignores years of common law precedent.

So in order to overturn this language you would need to amend the constitution itself. And I don’t see that happening. You would need a supermajority and even then you’re gonna have opposition from members of your own party.

And seeing as this is something you’ve been targeting since 2010 with no success to speak of I think it’s time you hang it up. I mean seriously PACK IT UP it didn’t work 14 years ago and it’s not gonna work now. Even if SCOTUS take it up I fear you’re not gonna get the result you want. Especially since every law review article you’ll be able to find can come to the same conclusion. Seriously no joke almost every single one this one was in 2009 even arguing in a SCOTUS Brief they come to the same conclusion. So I challenge you Mr. Graham to bring a constitutional amendment because the path you’ve been on hasn’t been working.

And finally

President Elect Donald J. Trump

See Trump is a special case because he isn’t really trying to bring a constitutional amendment or congressional change to get around the written language of the constitution. He just thinks he can do it with an executive order.

He said it back in 2018

And he’s going back to the well now with this absurd policy proposal reported by Breitbart So I’m not sorry to say that

THAT IS NOT HOW ANY OF THIS WORKS.

But I don’t even have to tell you that. I’ll just let Judge Ho do it.

We all know the text but Judge Ho offers a historic understanding.

He quotes Jacob Howard

“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

It is made even more clear when he quotes Howard again:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Other senators, like John Conness, reiterates Congress' original intent with this:

The proposition before us … relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.

Going back to history supports the position that birthright citizenship has always been the intent of Congress when passing the 14th Amendment. There has never been a distinction between "illegal aliens" or legal immigrants. It has always been that if you are born in the United States you are a citizen.

Judge Ho is all in on this interpretation with this quote:

To be sure, members of the 39th Congress may not have specifically contemplated extending birthright citizenship to the children of illegal aliens, for Congress did not generally restrict migration until well after adoption of the Fourteenth Amendment. But nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens. To the contrary, text and history confirm that the Citizenship Clause reaches all persons who are subject to U.S. jurisdiction and laws, regardless of race or alienage.

Now to be sure that this is understood Judge Ho quotes United States v. Wong Kim Ark and this really cements what Congress intended when passing the 14th amendment:

The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. … To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.

It is right there in black and white for you. There is nothing that can overturn this besides a constitutional amendment. Now I have seen some people, namely The Heritage Foundation, in articles like Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment | The Heritage Foundation and Does the Constitution Mandate Universal Birthright Citizenship? Here’s the Answer. | The Heritage Foundation but I would hope that you are able to do more research than just this because you will find that not every article agrees.

Going back Judge Ho ,in his article, he cites Plyler v. Doe which held that denying public education to those not legally admitted into the United States violates the Equal Protection Clause. He goes on to say that all nine justices agreed that the Equal Protection Clause applied to citizens and illegal aliens alike. To quote Justice Brennan:

every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” … No plausible distinction with respect to Fourteenth Amendment ‘ jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful"

Despite, Justice Byron White joining in on the dissent in Plyler he authored a unanimous opinion in INS v. Rios-Pineda that Judge Ho quotes holding that:

“respondent wife an illegal alien had given birth to a child, who, born in the United States, was a citizen of this country"

Judge Ho also cites Hamdi et al v. Rumsfeld, Secretary of Defense, et al which confirms that Rumsfeld was born in Louisiana and was a US citizen.

So Mr. Trump, it doesn't look like your position is going to hold because quite literally all of the branches agree that this is what birthright citizenship means and was meant to do. Nevertheless, it has faced attacks from you and the other two people I directed this post at. Sorry to tell you but this type of thing is not going to work for you unless you put in for a constitutional amendment. There is too much jurisprudence backing it up. Not even SCOTUS would agree with you.

Now an interesting development happened as I was researching for this post. Amazingly, Judge Ho has began to walk back some of his earlier claims on birthright citizenship. in this interview with Reason Magazine, An Interview with Judge James C. Ho, he actually started to walk back some of his claims. Well, he only sort of did that. Here is the quote:

I'm not going to talk about any pending case, of course. But anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion. Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be. It's like the debate over unlawful combatants after 9/11. Everyone agrees that birthright citizenship doesn't apply to the children of lawful combatants. And it's hard to see anyone arguing that unlawful combatants should be treated more favorably than lawful combatants.

He says that birthright citizenship is supported by precedent but then goes on to talk about invasions. I am no expert on this but I am very sure that unless there is evidence of an invasion you can't just declare illegal immigration as an invasion. States would never be able to do that. So he is arguing a moot point. If the states could do that they would have done it by now but there has been no legislative action to speak of. Which, to me, signals that they know if they try they're going to get wrapped up in litigation and would be on the losing side. He is also saying something that no one is arguing. No one has ever made the argument that he is saying they are making. So it is not a full walk back but just a really weird tangent that should rightfully make people give him a confused look and move on. Obviously, he has been auditioning for a SCOTUS seat for quite sometime and I, for one, hope that he does not get that nomination because there are a lot of better nominations. Even if I do agree with him on birthright citizenship.

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U.S. District, State Trial, State Appellate, and State Supreme Court orders/judgements involving a federal question that may be of future relevance to the Supreme Court.

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Supremecourt.gov Audio Stream [10AM Eastern]

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NVIDIA Corp. v. E. Ohman J:or Fonder AB

Questions presented to the Court:

(1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents.

(2) whether plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

Orders and Proceedings:

Brief of petitioners NVIDIA

Joint appendix

Brief of respondents E. Ohman J:or Fonder AB

Brief amicus curiae of United States

Reply of petitioners NVIDIA

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Starting this term, a live commentary thread will be available for each oral argument day and will host discussion on all cases being heard on that day.

Supremecourt.gov Audio Stream [10AM Eastern]

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Delligatti v. U.S.

Question presented to the Court:

Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Orders and Proceedings:

Brief of petitioner Salvatore Delligatti

Brief of respondent United States

Reply of Salvatore Delligatti

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Velazquez v. Garland

Question presented to the Court:

Whether, when a noncitizen's voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1).

Orders and Proceedings:

Brief of petitioner Hugo Abisai Monsalvo Velazquez

Brief of respondent Merrick B.Garland, Attorney General

Reply of Hugo Abisai Monsalvo Velazquez

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Here is Section 3 of the 14th Amendment:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

https://constitution.congress.gov/constitution/amendment-14/

And here is Trump v. Anderson, which reversed the Colorado Supreme Court, which had found that:

"(1) that the Colorado Election Code permitted the respondents’ challenge based on Section 3; (2) that Congress need not pass implementing legislation for disqualifications under Section 3 to attach; (3) that the political question doctrine did not preclude judicial review of former President Trump’s eligibility; (4) that the District Court did not abuse its discretion in admitting into evidence portions of a congressional Report on the events of January 6; (5) that the District Court did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and (6) that former President Trump’s speech to the crowd that breached the Capitol on January 6 was not protected by the First Amendment."

The SCOTUS held that:

"States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

...

"The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole."

SCOTUS also held that the enforcement of Section 3 is vested in Congress via Section 5, which states:

"Section 5

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Here is what 28 USC §1331 says:

"§1331. Federal question

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Here is some of what the 4 judges who took issue with the overreach of the majority said about specific legislation being needed for enforcement:

"Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. Even petitioner’s lawyer acknowledged the “tension” in Section 3 that the majority’s view creates. See Tr. of Oral Arg. 31.

Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883). Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II,§1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise.

It simply creates a special rule for the insurrection disability in Section 3. The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose. It cites Griffin’s Case, but that is a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge. See ante, at 5 (quoting 11 F. Cas., at 26). Once again, even petitioner’s lawyer distanced himself from fully embracing this case as probative of Section 3’s meaning. See Tr. of Oral Arg. 35–36.

The majority also cites Senator Trumbull’s statements that Section 3 “ ‘provide[d] no means for enforcing’ ” itself. Ante, at 5 (quoting Cong. Globe, 41st Cong., 1st Sess., 626 (1869)). The majority, however, neglects to mention the Senator’s view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “affor[ding] a more efficient and speedy remedy” for effecting the disqualification. Cong. Globe, 41st Cong., 1st Sess., at 626–627.

Ultimately, under the guise of providing a more “complete explanation for the judgment,” ante, at 13, the majority resolves many unsettled questions about Section 3. It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “ ‘tailor[ed]’ ” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law. By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.

...

The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. §3. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.

Because we would decide only the issue before us, we concur only in the judgment."

Which brings me to my questions:

1. Is there a federal question carve-out for the 14th Amendment, Section 3 of the Constitution, such that federal courts cannot enforce it or consider such harms or questions when an "oathbreaking insurrectionist" holds (or purports to hold) federal office in violation of the Amendment?
2. Is there a self-execution carve-out for 14^(th) Amendment, Section 3, of the US Constitution?
3. If there is a self-execution carve-out for the 14^(th) Amendment, Section 3, what is the legal basis for differentiating Section 3 from all other self-executing laws and provisions of the Constitution, like the Presidential term limit, the rest of the 14th Amendment, and the other Amendments?
4. If Section 3 is neither self-executing, nor are federal courts allowed to consider its enforcement as a federal question as delegated by Congress, is that not a massive power grab by the SCOTUS over Congress, the federal courts, the US Constitution, and American citizens, who would have no judicial recourse when harmed by an “oathbreaking insurrectionist” holding (or purporting to hold) office in violation of the Amendment?
5. If per the SCOTUS majority the 14^(th) Amendment, Section 3, is neither self-executing, nor enforceable by federal or state courts, then of what value is it in meeting its language and purpose of keeping “oathbreaking insurrectionists” out of federal and state office?
6. What does the SCOTUS majority expect people and States to do when they are harmed by the actions of an “oathbreaking insurrectionist” who holds (or purports to hold) the office of the Presidency in violation of the 14 Amendment, Section 3, if the law is neither self-executing as written nor enforceable in federal court?
7. SCOTUS also ruled in Trump vs. the United States that the POTUS cannot be prosecuted for "official acts". If an "oathbreaking insurrectionist" purports to hold the office of the Presidency in violation of the 14th Amendment, Section 3, of the Constitution, then how could ANY of their actions EVER be "official acts"?

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