Can technology defeat restrictions on reproductive health care?

 It may seem odd to analogize abortion rights to gun rights, but they share a commonality: They are both rights that can be restricted only because they cannot easily be exercised without the cooperation of others. Without the physician or the gunsmith, both rights are difficult to safely exercise (well, guns rights are pretty much impossible to safely exercise, but that's a different discussion).

One solution for people seeking to evade gun control has been to reduce the number of people required to create a gun. Ghost guns are constructed by the end user from a variety of parts. This, while still requiring more than one person, significantly reduces the number of people involved.  The other solution, scarier because it is only moderately difficult now and will become trivial as 3D printing technology further matures to include a variety of new materials, is to simply print a gun. Current 3D printed guns tend to degrade quickly because of the temperatures and pressures involved with printing a weapon, but there are already million dollar metal printers capable of making a gun comparable in quality to a properly manufactured weapon. How long until that technology reaches commodity pricing?

Reducing the number of people involved in a medical procedure is a very difficult proposition. If something goes wrong printing a gun, you can scrap the print and start over. If something goes wrong during an automated medical procedure, somebody might die. What blueprint might we follow to limit the government's ability to even know about abortions being performed? The magic number, of course, is one. If only one person knows it is happening (the woman seeking reproductive care), the government need never know it happened. So how do we get there?

Let's start with Da Vinci surgical robots, such as those by Intuitive Surgical.  They are set up in a hospital for the patient. The doctor gets behind a control console and manipulates incredibly sensitive and capable tools, doing surgery with a precision beyond that of an unassisted human hand. But they still require a hospital and a full care team. Oh, and they're way beyond the purchasing ability of all but a few thousand Americans.

This doesn't mean that it is impossible to do, however. Artificial intelligence can already operate aircraft and motor vehicles with better safety than most humans; can already read x-rays and find things that the best radiologists miss; can, in short, do that which humans alone have previously been able to do.

Let's be clear. This is a terrible place to be. Trying to figure out a way to safely deliver health care to woman whose ovaries and uterus have become property of the Gilead states. As between a legal, safe abortion and any other abortion method, the other methods are a distant and dangerous second. But we know woman will get abortions, so we are no longer in a "it must be done safely" mode. We're in the abortion analogue of harm reduction mode.  We know these alternatives won't be fully safe, so the harm reduction question is "can we make them as safe as possible given that the alternatives are more dangerous?"

An obvious line to draw is this: Abortion saves more women's lives than it takes if the rate of death from abortions is lower than the rate of death from childbirth. There are other critical benefits of abortion -- namely self-determination for women -- and different people will attach different values to that, but some risk of death is often accepted if it is the cost of freedom. So while a net savings in lives as compared to carrying to term is an easy line to draw, greater risk levels may well be acceptable to many women.

It should come as no surprise that the "pro-life" states have the highest maternal death rates (likely because they are really "pro-birth" and "anti-autonomy for women" more than they are "pro-life"). California, with safe and legal reproductive care enshrined in law, has the country's lowest maternal death rate at 4 deaths per 100,000 births. It is more than eight times more risky to give birth in Texas, almost almost fifteen times as risky to give birth in Louisiana. 

But given that it has become amateur hour at the US Supreme Court and older, cis white men are hard at work making reproductive health care a thing of the past for women in red states, somebody has to explore the alternatives. Thanks to additive printing and related technologies, there are huge numbers of people with the skill set to build a kit designed to provide abortions. Would it be safe? Well, safer than the alternatives, but not actually safe. This is similar to 3D printed guns. They normally work, but they aren't nearly as effective or safe as properly manufactured guns.

Another option is for elderly retired (but still licensed) doctors to perform the procedures. This idea is inspired by the elderly volunteers who helped Japan recover from a tsunami-triggered nuclear disaster. Somebody needed to go in and basically get a nearly fatal dose of radiation, and hundreds of people without many years left volunteered -- a final act of selflessness.  So Doctor Freedom (why not call her Doctor Freedom?), a retired OB/GYN, comes out of retirement at 80 years old and begins to provide reproductive health care to women in Texas. She's already transferred the vast majority of her wealth to her heirs, so she isn't afraid of being sued civilly for performing the procedure. She knows that she is unlikely to survive long enough to go to trial and be convicted -- and that getting a conviction against a 80 year old on a charge that many Texans think is bullshit will be hard due to jury nullification. After all, it just takes one "not guilty" vote to hang a jury.

It is remarkable that we even need to discuss this. The United States shouldn't be on a par with Afghanistan on women's health care, but republicans are doing their best to get there.

Texas exploited a loophole to effectively ban abortion. Providers can exploit a loophole to continue performing them.

This summer, Texas passed a law, SB8, that was intended to flummox the federal courts of the United States, preventing them from ruling on an abortion restriction that is not supported by the majority of Americans and structured in a way that 81% of Americans oppose. 

The law is structured simply: Abortion is prohibited after around 6 weeks (when early cardiac electrical activity is detected - "a little flutter in the area that will become the future heart"). However, state and local law enforcement is prohibited from enforcing the law. Instead, anybody who performs or otherwise facilitates such an abortion can be sued by literally any private citizen in the United States to collect a $10,000 bounty. 

Chief Justice Roberts' dissent describes the scheme to avoid federal court review simply:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.... And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. 

For reasons known only to the homophobe behind the concept, the law prevents recovering an infinite amount of money from an a person facilitating an abortion by creating an absolute defense to a suit brought to collect the bounty:

(c)  Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter. [emphasis added] (We'll call this statute the "I already paid defense")

Did you spot the loophole in this structure yet? Let's explore it. Imagine that there are two abortion providers, Dallas Reproductive Freedom and Austin Reproductive Freedom. The two providers agree to exchange a list of scheduled abortions for that day (of course, the patients would need to waive HIPPA to do this, which means many women will still feel the need to travel for an abortion, but no loophole is perfect). Each provider (or an employee in the event courts read "person" to exclude legal persons such as corporations) prepares a lawsuit against the other for $10,000 for each abortion the other provided that day.

Each provider files suit against the other at the end of each business day. The the parties accept service of the suit by email and immediately file stipulated judgments in both suits, with each defendant agreeing to a stipulated judgment where they simply pay the other provider the full amount. This is where the "I already paid" defense loophole kicks in: Each provider writes a check to the other for the full amount. Preferably they perform the same number of abortions each day so that they can each exchange a identical check (although they can also equalize payments by averaging them over time, bringing in additional clinics, etc). If they each perform 20 abortions, they give each other a check for $200,000.

This is the end of their liability. They can now demonstrate that they "previously paid the full amount of statutory damages" and the statute no longer applies with regard to those covered abortions.

I leave it to tax lawyers to figure out if there is a tax issue I'm missing. A fundraising component would be required to pay for the filing fees for the suits. Lawyers would need to volunteer to at least draft the complaint templates that would be used by the clinics. The bottom line, though, is that Texas women would once again have some level of reproductive rights, and the #texastaliban will have failed to actually impose taliban-like restrictions on women.

A Freedom of Choice-Based Covid-19 Mask Policy

Early in the Covid-19 crisis, the wearing of masks in the US became a political statement. I'm sure everybody's thinking about why this happened is fairly well cemented, so rehashing how the US got there is not really helpful.

The anti-mask movement has spread from the US, where it is present among a large number of people with a disdain for science, to people in other countries. I am a plaintiff in a lawsuit in British Columbia, Canada trying to get the schools to be able to reopen in a safe manner. The right thing to do, from an epidemiological perspective, is to require masks. This is no different than requiring seat belts, mandating food safety in restaurants, or prohibiting drunk driving. There is actually a far stronger case for masks -- they save lives -- than there is for laws prohibiting public nudity or requiring a permit to use public spaces.

We live in the world we have, not the world we wish we had. In the world we have, a substantial number of people refuse to take the basic steps to keep us safe during a pandemic. A substantial number of people even profess to believe that those public safety steps actually make you sick -- akin to claiming that a condom increases your risk of catching an STI. But we cannot let public health perfection stand in the way of better public health.

Even stores, governments, and public health agencies seem to have given up on requiring masks of those die-hard science deniers. "Let them shop maskless" is the CDC's latest position.

Governments and private entities are acting based on the incorrect assumption that masks are a binary choice: Either every place requires them or every place does not.  There is another way.  Granted, this method will not stop the virus from spreading, and case numbers may keep going up. But they would mostly go up among populations that choose to take the risk (and the unfortunate relatives of that population who are exposed at home).

Taking schools as an example, the lawsuit I am involved with takes place against a background of the British Columbia school reopening plan. That plan splits schools into learning groups or cohorts -- rather large ones at that, reaching up to 120 students in each cohort for high schools and 60 students in primary schools.  A family like mine is thus exposed to the risk of catching Covid-19 from any of 180 students (one high school student and one primary school student). 

Now imagine if instead of cohorts that are identical, cohorts were instead designated "high risk, high safety" and "low safety".  Parents would elect to put their children into one of the two groups. High risk teachers and administrators would be able to elect the high safety cohort to work with, while teachers required to work with the low safety cohort would be given hazard pay (given the risk to families, I'd imagine the hazard pay would have to be substantial to get enough teachers willing to take the risk).

The high safety cohort would be kept entirely separate from the low safety cohort. Surfaces would be sterilized after being exposed to low safety cohort members. Low safety and high safety cohorts would be completely separated, operating on different schedules. Perhaps critically, because the high safety cohort has elected to be safe, there would be near total compliance with health recommendations. No amount of anti-mask propaganda from parents would matter, because the anti-mask parents would all elect the low safety cohort.

In the case of British Columbia, this would mean that one cohort would use the existing rules, and another would follow much safer rules.  Elsewhere, it may mean that non-compliance disappears where the existing rules are already high safety.

Turning to retail stores, a similar program could be put in place. Entire stores could elect high safety or low safety. The stores would have to make reasonable accommodations for those employees who are at high risk (per the US ADA and Canadian human rights law), perhaps letting high risk employees at low safety stores work in the back room.  In some cases, there may be two Starbucks a one minute walk away from each other (this is a real thing). One Starbucks may be high safety and require masks, have no indoor seating, clean high touch surfaces every ten minutes, etc.  The other Starbucks may be low safety and not require masks, have indoor seating, and be more lax in cleaning surfaces. While hazard pay would likely be required to get employees to take this risk (or they could find enough anti-maskers among their ranks and do inter-store transfers), it would create a situation where people who are at risk can actually go to a Starbucks without worrying about non-compliance with safety rules.

In places where shopping density is too low to have some stores high safety and some stores low safety, they could in theory split the safety level on a time basis. For example, every odd numbered hour would be low safety, every even numbered hour high safety, with a surface sterilization every time there is a switch from low to high safety.

On an economic basis, this is likely to encourage people who have not been willing to risk shopping (I haven't seen the inside of a supermarket in six months) to shop. It will dramatically reduce the drop in consumer spending by allowing those of us at too high a risk level to actually get out and spend the money we have. In other words, we could add a point or two to the Gross Domestic Product. A similar economic effect would happen with the school changes. Parents who are too high risk to allow their children to risk bringing home the virus are currently faced with lower productivity as they have to split their time between home schooling/childcare and work.  If the schools provide a safe alternative, those parents would be able to work more -- again improving the GDP.

From an epidemiological perspective, the perfect approach would be to lock down for several weeks and basically eliminate any endemic cases. But the political will to do so does not exist. A less effective approach, but still a good deal better than nothing, is to free those of us at high risk to participate equally in society. If somebody was randomly shooting people, it would obviously dampen the economy as people would not want to be exposed. For those of us at high risk, the dampening effect of Covid non-compliance is very similar. This middle ground, catering to science believers and science deniers, allows society to reopen more safely while reducing the economic impact of the virus.

The Constitutional Time Bomb

The United States Constitution rightfully has a venerated place in the history of democracy. Unfortunately, it also has a structural problem that will make it unworkable -- possibly in the very near future.

The Population Data:

Statista has a projection of U.S. population by state in the year 2040.  I have serious doubts that any projection will be accurate as major weather events (like the one that displaced a huge number of people in Puerto Rico), drought, and other symptoms of climate change will likely cause unpredicted and substantial shifts. However, we go with the data we have, not the data we wish we had.

The data shows that the projected total population of the states of the United States is 381,975,542 (quite specific for a projection, I know). This excludes territories and the District of Columbia (which is projected to have a population greater than the six smallest states).

The eight largest states, California (12.64% of the total U.S. population), Texas (10.65%), Florida (7.39%), New York (5.60%), Pennsylvania (3.40%), Georgia (3.35%), Illinois (3.32%) and North Carolina (3.28%) will together represent approximately half (49.64%) of the total U.S. population.  The smallest 26 states (i.e. a majority of states) will have 18.26% of the total U.S. population.  The smallest 34 states (i.e. a two-thirds majority of states) will have 30.56% of the total U.S. population.  The smallest state by population, Vermont, will represent 0.16% of the total U.S. population.

This is a change -- though not a huge change -- from how it is today.  Current state population statistics show that the largest twelve states, California (10.35%), Texas (7.41%), Florida (5.49%), New York (5.20%), Pennsylvania (3.35%), Illinois (3.35%), Ohio (3.05%), Georgia (2.73%), North Carolina (2.69%), Michigan (2.61%), New Jersey (2.36%), and Virginia (2.22%) represent approximately half (50.81%) of the total US population.  The smallest 26 states (i.e. a majority of states) have 16.26% of the total population.  The smallest 34 states (i.e. a two-thirds majority of the states) have 26.95% of the total population. The smallest state by population, Wyoming, represents 0.15% of the total U.S. population.

The Problem: Senate Version

The United States Senate is comprised of 100 senators, two from each state.  While senators are directly elected pursuant to the 17th Amendment, they are elected at a flat rate of two senators per state, regardless of population.

The Senate was established in Article I, Section 3 of the U.S. Constitution.  No legislation can become law without a majority of the U.S. Senate (or with a tie, broken by 'yes' vote by the Vice President).  The Senate has every power the House has, except the power to impeach and the power to originate spending bills.  However, the Senate also holds a huge amount of power that the House does not, including:

The power to approve or disapprove of treaties by a two-thirds vote;

The power to approve ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States by a simple majority vote; and

The power to remove an impeached President or other officers of the United States from office by a two-thirds vote following an impeachment in the House (without such a vote in the Senate, an impeachment does not cause any removal from office).

The upshot of this, in light of the current and projected population, is bad.  Currently, senators representing only 16.26% of the total population control a majority of the Senate. Put another way, legislation or judges supported by 83% of the U.S. population can be rejected if the senators from the 26 smallest states vote to reject them.  Legislation punishing large states (as the 2017 tax reform bill did by capping the state income tax deduction) can be passed by senators representing less than 17% of the U.S. population.  Impeachment trials, treaties, and veto overrides can be passed by senators representing less than 27% of the U.S. population.

Oddly, this gets slightly better with the projected 2040 numbers, when the smallest 26 states will represent a total of less than 19% of the total U.S. population yet control a majority in the Senate.  By 2040, treaties, impeachment trials, and veto override requiring two-thirds of the Senate will be controlled by senators representing less than 31% of the U.S. population.

Looking from the perspective of the biggest states, however, things get much worse over time.  Currently, the 50% of the U.S. population living in the biggest states get a small 22% of the voting power in the Senate.  However, by 2040, the 50% of the U.S. population living in the biggest states will get only 16% of the voting power in the Senate.  While 22% and 16% seem to both be quite small, the drop to 16% represents a loss of more than a quarter of the power held by the half of the population living in the largest states.

When legislation and judges supported by 83% of the population now (or 81% of the population in 2040) can be blocked by senators representing only 17% of the population now (or 19% of the population in 2040), you no longer have a functioning democracy.  When half of the population gets only 22% of the voting power now (and only 16% of the voting power in 2040), you no longer have a functioning democracy.

Revolutions have happened over such badly skewed representation, and if the trends continue, the risk of revolution in the U.S. -- particularly given the ease by which military grade weapons can be obtained -- is unacceptably high.

The Problem: Electoral College Version

The President of the United States is not elected by popular vote. Instead, the electoral college (the one created by the 12th Amendment to replace the version in the Constitution -- adopted instead of a national popular vote at least in part to preserve slavery) provides that (with the exception of Washington D.C., which gets the same number of electors as the smallest state by population, per the 23rd Amendment) each state gets one vote for every member of Congress, and of course no state is permitted to have less than one member of the House.  That means that the minimum number of electoral votes each state gets is 3 -- or that 153 electoral votes (3 per state and 3 for D.C.) are assigned without regard to population.  Since the electoral college has a total of 538 votes, this means that 28.4% of electoral votes are distributed without regard to population, and the remaining 71.6% are distributed based on population.

As the largest states grow larger and the smaller states represent a smaller percentage of the population, two competing risks grow.  The first risk is that a small number of states can control the entire electoral college.  Imagine, for example, an interstate compact between the twelve largest states: Virginia, New Jersey, North Carolina, Georgia, Michigan, Ohio, Illinois, Pennsylvania, Florida, New York, Texas, and California, which together represent 270 electoral votes.  The compact states simply: "The winner of the majority vote aggregated among the twelve parties to this compact shall be given all of the electors in every state that is a party to this compact."

Boom.  Now only twelve states are relevant to the presidential election.  No matter what happens in the other thirty-eight states, the winner of the popular vote in twelve states becomes President.  That is a very undemocratic outcome.  I long harbored doubts about whether such a compact would work, as the Constitution gives state legislatures more or less plenary powers to determine how electors are chosen, and there is no reason to believe that a state unhappy with the outcome would not withdraw from the compact between the day the popular vote is held and the day the electoral vote is held.  Nonetheless, a compact in this form poses a rather serious risk to democracy.

The second risk requires no interstate compact and will come to pass unless the Constitution is amended.  In fact, the risk has already been realized -- although Republicans have held the White House for three of the five Presidential terms in this century, they won the popular vote only once in this century.  It may already be the new normal that the winner of the popular vote loses the election most of the time -- but if it is not the new normal, it soon may be.

Currently, there are seven states with only three electoral votes -- Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming.  Those seven states represent 1.46% of the current U.S. population, but hold 3.9% of the electoral college voting power.  If we include states with five or fewer electoral votes, we find fifteen states representing 4.8% of the population but 8.4% of the electoral college voting power.  The difference between 4.8% of the population and 8.4% of the electoral college voting power means that voters in the fifteen smallest states get an extra 19 electoral votes not supported by their population size.  This does not sound like a lot of voting power, but consider that many elections come down to just a few electoral votes.  Both of George W. Bush's elections were closer than 19 electoral votes.  When you consider that this inequality between population and electoral vote power can influence far more than 19 electoral votes (picking 3 or 5 electoral votes as my cutoff was arbitrary, after all), the risk that the popular vote winner will not become President is big -- and becoming bigger.

The Problem: Candidate Version

With the exception of Donald Trump and Dwight Eisenhower, modern Presidents have been drawn from the ranks of governors and senators. However, if half of the population -- and therefore half of the potential Presidents -- live in only eight states, there are only 24 people among half of the U.S. population who meet the traditional resume requirement for President. By contrast, there would be 126 people among the other half of the U.S. population who meet that requirement.  Of course, we can count former senators and governors, but the ratio remains just as dismal.

Because the traditional pathway to the Presidency is now closed for many people in the populous states, we should expect an ever-increasing number of people to run for President with little or no political experience.  This, too, should be a source of concern.  Because of the combination of the high cost of running for office and the paucity of opportunities for people in large states to become senators or governor, we can expect a large number of wealthy people to run.  For the lawyers reading this, don't put away your briefs about the Emoluments Clause just yet.

The Time Bomb:

The world will not end (I sure hope) in 2040, and the demographics will continue to shift.  As global climate change makes much of the Southwest United States an infertile drought zone, and much of the Southeast United States an uninhabitable hot zone, the number of states with tiny populations will grow as the number of states with huge populations will change.  At some point, it will become untenable for a state with a few thousand people to hold the same voting power in the Senate as a state with tens of millions of people (or more).

Solutions will be hard to come by, however: A constitutional amendment requires ratification by three-fourths of the states.

Proposed Legislation for California on Guns

** Edit **



The concept here is to draw from the text of the second amendment and from an abortion-reduction strategy adopted by numerous legislatures.



Starting with what we learned from the abortion debate, a supermajority of states require some kind of counseling prior to an abortion procedure.  Similarly, a majority of states require people seeking an abortion to obtain counseling and read written materials about the impact of abortion.  See https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion



A similar strategy makes sense in the context of guns. Few gun owners have actually seen what the weapon they fire does to a human adult, much less a human child.  This leads to inaccurately gauging the need for proper training (to avoid hitting bystanders), the need for proper gun storage, and the risk of having the gun taken from the owner during a confrontation.



I propose requiring prospective gun and ammunition acquirers to view the damage that munition can do.



Because an analogous requirement is at the heart of the “red state” approach to limiting abortion, having such a requirement in the context of gun sales would force a choice:  Do conservatives advocate that a requirement that materials be reviewed prior to the exercise of a constitutional right is unconstitutional?  If so, they would functionally choose gun rights over limiting access to abortion.



The second element is embracing the portion of the second amendment that states “A well regulated Militia, being necessary to the security of a free State…”.  The second amendment is the only part of the Bill of Rights that specifically contemplates regulation in the text.



The approach I propose automatically enrolls gun owners in a state militia.  The state militia is “well regulated”, meaning there is a chain of command (starting with the Governor), regular training requirements, and the ability to be called up should the need arise.



A superficial legal analysis will quickly conclude that such a requirement runs contrary to the precedent set in the Heller case (http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf).  However, Heller involves the federal government (actually the government of the District of Columbia, but that government is part of the federal government per Article 1, Section 8.17 of the Constitution) and overlooks a crucial piece of history.  What few non-lawyers know is that the rights set out in the federal constitution did not apply to the states until several decades after passage of the Fourteenth Amendment.  In the Railroad Cases (https://supreme.justia.com/cases/federal/us/166/226/case.html), the Supreme Court held in 1897 that the takings clause applied to the states.  In the 1925 Gitlow v. New York case, the Supreme Court held that (https://supreme.justia.com/cases/federal/us/268/652/case.html) “we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.”



Gitlow was an early “incorporation” case, and after that case and others, the Supreme Court eventually held that the fourteenth amendment “incorporates” the bill of rights and other constitutional rights and applies them to the states.  Before Gitlow, states had great latitude to ban guns, restrict speech, and generally do things that modern Americans would view as repugnant to a free and open society.  The remedy would be to move to a state where those rights are protected by the state constitution.  The slip opinion in the Heller case itself discusses this history on page 53 (http://www.scotusblog.com/wp-content/uploads/2008/06/07-290.pdf).



Because Heller addressed a gun control statute passed by an entity that is technically part of the federal government, Heller never addresses how the Fourteenth Amendment would interact with the Second Amendment (and even if it did address that issue, it would be “dicta” as the issue was not properly before the Court).



Heller goes through incredible legal gymnastics to find that the Second Amendment creates an individual right to own a gun -- a view that Nixon’s Chief Justice, Warren Burger, describes as a fraud:

The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.



Fraudulent or not, Heller is the current interpretation of how the Second Amendment applies to the federal government.  While Heller does not directly address the applicability of the Second Amendment to states via the Fourteenth Amendment, the writing is on the wall:  This court is going to find that the Fourteenth Amendment incorporates an individual right to bear arms.



What I propose below, however, poses a novel constitutional question:  The Second Amendment contemplates a state militia.  As such, is it within the sovereign rights of a state to tie the exercise of the right to bear arms with service to the state as part of a state militia?  Put another way, can a state allow people to bear arms while simultaneously requiring them to make themselves available in the event of an invasion or other emergency?  I believe the answer to that question is “yes”.



This issue poses a second novel constitutional question:  How is the Second Amendment modified by the Fourteenth Amendment?  The Second Amendment arguably creates a right for states as well as for individuals.  Implied in the language of the amendment itself is that concept that the right granted is necessary because of the right of states to form Militias.  Surely the Fourteenth Amendment did not strip that right from the states.  Rather, the right of the state to form a militia is inexorably connected with the right to bear arms, and an extension of the right to bear arms to state regulations does nothing to abrogate the right of a state to create a militia.



The Heller Court held that the phrase “A well regulated Militia, being necessary to the security of a free state” was mere preface, intended to help provide context for the interpretation of the following phrase stating “the right of the people to keep and bear arms shall not be infringed.”  Applying the Heller “preface as interpretation aid” standard, we can understand the right to bear arms as not being infringed by requiring that they be used -- in addition to use for home defense -- as part of a well regulated militia.  



There is a simplistic argument that conditioning the right to bear arms on service in a state militia somehow violates the Thirteenth Amendment's prohibition on slavery.  However, this assumes that the Second Amendment does not expressly contemplate the right to bear arms as crucial to the ability of a state to exercise a militia.  The two cannot be divorced.  Indeed, a refusal to serve the state in a crisis is a strong indicator that the person refusing is likely to use the weapon improperly.  Even if mandatory service by gun owners in a militia is somehow found to violate the Thirteenth Amendment, there is every reason to believe that training to service in a militia, combined with a choice at the time of a call-up as to whether to serve, would eliminate the problem.  Gun training is a well-accepted prerequisite for a concealed carry permit, and this simply extends such training.



The Supreme Court has become a political arm of the government.  With the exception of Justice Kennedy, the party of the President who appoints a justice is nearly dispositive of that justice’s vote on key issues.  While I fear that this Supreme Court would vote -- 5 to 4 -- that patriotic service to the state is an undue burden on the right to bear arms, such a vote would expose the naked political nature of the Supreme Court.  



It is certainly a legitimate argument -- “the first phrase matters and it specifically contemplates that the right to bear arms is created in order to assure the availability of a well regulated militia.”  Some state will have to have the guts to test it.  What better state than California, where the ravages of climate change, the disasters of earthquakes, being within range of North Korean missiles, and other events will surely require the use of a force far larger than the state currently has at its disposal.



With these arguments in mind, I propose the following:

** End Edit **
The text of the Second Amendment:  “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”.

As the Second Amendment contemplates the right of the people to keep and bear Arms within the framework of a well regulated militia, California should consider adopting legislation that establishes such a militia and ties it to weapons ownership.

Such a militia would be a powerful force for good, enabling the government to deploy a force approximately 7 million strong to do everything from protecting against invasion to assisting in natural disaster relief.

Section 1: Findings:  

The People of the State of California find and declare as follows:

1.01 The establishment of a well regulated Militia is necessary to the security of the freedom of California and its citizens.

1.02 More than 20 percent of California residents own a firearm, meaning that well over 7 million California residents own a firearm.

1.03 Draught, global climate change, civil unrest, food insecurity, crime, potential nuclear attack by North Korea or others, and other dangers create a need for a Militia to protect the security of the free State of California and its residents.

1.04 Establishment of a California Well Regulated Militia (“California Militia”) will guarantee the availability of an armed, well trained and well regulated force that may be called up in the event of threats to the security of the free State of California and its residents.

Section 2: Establishment of California Well Regulated Militia:

2.01 A California Militia is hereby established.  

2.02 The commander-in-chief of the California Militia is the Governor of the State of California.  The Governor shall designate such generals, commanders, and other officers of the California MIlitia as the Governor shall deem necessary or desirable.

2.03 Any purchaser, acquirer, owner or person in possession of Militia Weaponry, defined as any one or more of (1) Arms, as that term is used in the Second Amendment of the Constitution of the United States (“Second Amendment Arms”), (2) arms that are more powerful than Second Amendment Arms, or (3) ammunition for the foregoing, is hereby enrolled as a member of the California Militia.

2.04 Persons already in possession of Militia Weaponry on the effective date of this legislation shall have 30 days to inform the Attorney General of the State of California as to (a) their possession of Militia Weaponry making them a member of the California Militia; and (b) disclose to the Governor of California the Militia Weaponry that they possess, as well as Militia Weaponry that the person is trained in.

2.05 Persons entering the State of California with Militia Weaponry shall register as a member of the California Militia prior to possessing Militia Weaponry in the State of California.  The Governor shall establish a registration authority that operates 24 hours a day on every day of the year. Non-residents of California visiting the State of California shall automatically cease to be members of the California Militia upon departure from the State of California.

Section 3: Training, Mandatory Duty, and Leaving the California Militia.

3.01 Members of the California Militia must receive no less than 40 hours of training at least once every six months in safe Militia Weaponry operation, Militia duties, and such other matters as the Governor shall determine.  Legislation may increase, but not decrease, the number of hours of training, expand the subject matter of the training, or expand any other obligations of the California Militia.

3.02 Any member of the California Militia may resign only by surrendering to law enforcement, or otherwise legally and permanently transferring out of his or her possession, all Militia Weaponry.  Any member of the California Militia who leaves the State of California for more than 30 days shall automatically become an inactive member of the California Militia until they reenter the State of California, at which time their membership shall immediately become active again.

Section 4: Criminal Penalties for Dereliction of Duty, Failure to Properly Register:

4.01 It is a felony for a person who is not a registered member in good standing of the California Militia to acquire or possess Militia Weaponry.  The penalty for a violation of this section shall be a fine of not less than $100,000 not more than $1,00,000 and a prison term of not less than 10 years.

4.02 It is a felony for to provide or sell Militia Weaponry to a person who is not a registered member in good standing of the California Militia.  The penalty for a violation of this section shall be a fine of not less than $1,000,000 not more than $10,00,000 and a prison term of not less than 25 years.  The Attorney General of the State of California shall, upon request of a potential purchaser or acquirer of Militia Weaponry, provide a certification of California Militia membership directly to a person designated by the potential purchaser or acquirer.  Such a certification shall be effective for 24 hours after issuance. Good faith reliance on an effective certification shall be an affirmative defense to the crimes described in this paragraph.

4.03 The Governor or his or her designee may call up any one or more California Militia members for active duty.  Failure to timely report for active duty shall be a felony. The penalty for a violation of this section shall be a fine of not less than $100,000 not more than $1,00,000 and a prison term of not less than 10 years.

4.04 The Governor shall issue regulations defining dereliction of duty.  Any modification of such regulations that has the effect of reducing the criteria needed to constitute dereliction of duty may not be made by the Governor, but must instead be instituted as legislation.

Section 5: Mandatory Information and Waiting Period:

5.01 In addition to any other waiting period, testing, or information requirements, any purchaser of Militia Weaponry, including ammunition, shall be required to view an educational video compiled by the Attorney General of the State of California.  Such educational video must show not less than 30 minutes of uncensored crime scene and autopsy photographs of persons killed by the specific Militia Weaponry being acquired by the viewer.

5.02 No Militia Weaponry may be transferred less than 48 hours after completion of viewing such educational video.

Why I Am Moving To Canada

Every father has a moral obligation to protect the life, safety, and welfare of his children.  This obligation extends to bringing the children up in an environment where they feel safe enough to thrive, succeed, and live happy, successful lives.

I can’t raise my daughters in Trump’s United States without violating that moral obligation.

My obligation to my daughters is more than sufficient reason to compel me to move.  However, there are other reasons that might themselves also be sufficient to compel a move.  In combination, I do not feel I have a choice.

We are moving to the clean, free Canadian city of Vancouver, British Columbia.  I was born in Montreal, Canada, but spent the last 41 years in the United States.  I’ve paid millions of dollars in taxes.  I’ve tutored prisoners and children with learning issues.  I’ve served on non-profit boards and made many charitable contributions.  I’ve spent around a thousand hours working on political campaigns.  I’ve represented poor families pro-bono as an attorney.  In other words, I believe in Americans.  I love my fellow Americans.  But their choice in November has upended my world.

When George W. Bush was appointed to the Presidency by a one vote margin on the Supreme Court, despite losing the popular vote and quite possibly losing Florida, I was disappointed but didn’t even consider leaving the country.  My daughter was still safe, and I knew that political differences would not stop George W. Bush from going to extraordinary measures to ensure that the United States remained a stable, rational, functioning and safe democracy.  I had my second daughter during his Presidency, and it never occurred to me that he would intentionally put her at risk.  I conceived my third daughter during the 2008 campaign, knowing that Obama and McCain were both decent, rational Americans and my family would be safe.

In 1988, Democratic Presidential Nominee Mike Dukakis (in)famously said “this election is not about ideology – it is about competence”.  That line did nothing to help him win, because George H.W. Bush was competent.  Like all elections before 2016, that one was about ideology.  2016 was different.

I campaigned hard against Hillary Clinton during the 2008 primaries, and if I’m honest with myself, a lot of the reason for that is that I am a very loyal person, and Barack Obama, while not by any stretch somebody I was friends with at Harvard Law, was a classmate.  Hillary Clinton's campaign did things in 2008 that I found quite questionable.  I never knew for sure, but when I did voter protection work in Texas and Pennsylvania during the 2008 primaries, I was assigned to districts with mayors that supported Hillary and voters that leaned strongly to Obama.  Magically, coincidentally, or for a pernicious reason, polling places in both states were moved for the first time in memory.  I spent hours on election day in Philadelphia and Corpus Christie helping voters figure out where their new polling place was.  That experience shaped my view of the Clintons in a negative way. 

Perhaps even worse, at least from the perspective of “which candidate is genuinely caring”, during the 2008 campaign, my daughter wrote a letter to candidate Barack Obama and quickly received a gracious response not advocating his candidacy, but instead exhorting her to reach for the stars.  It is a letter that she framed, and that framed her feeling that politicians can care about people.  By contrast, my youngest daughters wrote letters to candidate Hillary Clinton thanking her for proving that girls can aim for anything and succeed – or as one daughter put it, “I think I still want to be a veterinarian and tattoo artist, but maybe I’ll be president”.  They never got a response – although I continued to get my at-least-daily email asking for money.  For somebody who ran on her work with children, this seemed to expose her as disingenuous.

While Hillary Clinton was by no means my first choice in 2016, when the General Election rolled around, it was clear that it would be President Clinton or President Trump – and the choice became easy.  When I vote, my screening process is simple:  Is this person sane, competent, and capable of keeping my family – indeed all people – safe?  If the answer is no, I need look no further.  If Trump had run as a Democrat, pushing a liberal agenda, against arch-conservative Ted Cruz, my initial screening would have been all I needed to know:  I would have supported Cruz.  I would have gone home and taken a shower after voting to wash off the shame, but at least Cruz would have delivered what we all need:  A stable, functioning, rational government led by somebody smart enough to know the difference between fantasy and reality.

There may be multiple universes, but we live in this one.  There might have been alternative facts (no, not the Trump alternative facts, but facts that might have been had things been different), but we live in a world with the facts as they are.  And the facts as they are mean one thing:  After Trump's election, the United States is no longer a stable, functioning democracy.  This is, after all, a man who threatened to not accept the results of the election unless he won.  Who claims that his election was tainted by millions of unlawful votes, yet bristles at any insinuation that his election was not legitimate. 

While I no longer believe we have a functioning federal government, the problem runs far deeper.  When Trump was campaigning, he made it appear just fine to mock the disabled, call all Mexicans criminals, and treat women as meat to be handled.  His failure to even mention Jews in his statement on Holocaust Remembrance day was yet another anti semitic dog-whistle.  

Without putting my kids on the spot by using exact quotes, I can say that I have one daughter who has several times asked not to go to school because a boy keeps threatening to grab her genitals.  I have another daughter who says she is being excluded because of her religion.  When one of your kids makes a list of Hanukkah gifts she would like, having Jews treated as equals at her public school should not be at the top.

I also cannot bring up my daughters in a country where women are so relegated to the barefoot and pregnant role that the President thinks it is acceptable to sign an order impacting only women, surrounded by a group of white men.  

Finally, the brewing constitutional crisis is something I don't want to be here for.  When Trump tries to circumvent the 10th Amendment by withholding funds from cities that refuse to allow the federal government to order state employees around; when Trump ignores lawful federal court orders; when Trump fires a deputy attorney general because she took the same position as the federal courts; when Trump signs an executive order that (probably) violates the First Amendment's establishment clause -- when all of those things happen in the first week of his Presidency, I worry.  A lot.  Trump fancies himself a "leader" in the mould of Putin, and I wouldn't put it beyond him to try to bring cities into line by rolling tanks down our streets.  He's simply so vindictive, irrational, and willing to throw out 200+ years of American freedoms that I can't rule anything out.

So we are moving.  It is happening.  I hate that I feel forced to leave a nation that I love, but forced I am.