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The Second Amendment and Non-Citizens:

The Second Amendment / illegal alien decision discussed in the post below reminds me of a broader question — do noncitizens who are legally present in the U.S. have Second Amendment rights?

1. Federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa. Some state laws go further and ban all possession by noncitizens, including by permanent residents. The law of Guam likewise bans all possession by noncitizens, and because federal statutes extend the Bill of Rights to Guam, the Guam law could be challenged even without reaching the question whether the Second Amendment is incorporated against the states.

Generally speaking most constitutional rights have been extended (at least where criminal punishment, as opposed to the threat of deportation, is involved) to legal aliens. Should this apply to the Second Amendment? The reasoning in the illegal alien opinion seems to potentially apply to legal aliens as well, though that's not clear.

2. Also, what about the Court's doctrine that state and local laws (as opposed to federal law) discriminating based on citizenship are subject to strict scrutiny? There's an exception for discrimination that denies aliens access to "political functions" that are "intimately related to the process of democratic self-government" (such as voting or jury service, or hiring of police officers, probation officers, or public school teachers), but given the Court's self-defense-rights reasoning in Heller, that likely doesn't apply here. A few state courts have considered this argument, and have split on it. See generally Pratheepan Gulasekaram, Aliens With Guns: Equal Protection, Federal Power, and the Second Amendment, 92 Iowa L. Rev. 891 (2007).

3. Note also that some state constitutions secure a right to keep and bear arms to all persons, while others speak of "people" and still others speak specifically of "citizens." There might thus be a right to bear arms under at least some such state constitutions, as I argued in this op-ed that criticized an Omaha ban on handgun possession by noncitizens (including perfectly legal residents) — the Nebraska Constitution provides that "All persons have certain inherent and inalienable rights," including "the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes." Cf. People v. Zerillo, 189 N.W. 927 (Mich. 1922) (striking down on state right-to-bear-arms grounds a ban on aliens possessing guns); People v. Nakamura, 62 P.2d 246 (Colo. 1936) (likewise). But see State v. Vlacil 645 P.2d 677 (Utah 1982) (rejecting such a claim without much explanation, under a state constitutional provision that speaks of "the people" rather than citizens); and there are also several decisions from other states that reject noncitizens' claims on the plausible theory that the particular state constitutional provision speaks expressly of a right of the "citizen."

Melancton Smith:
As I stated in the post below, if it is an unalienable right, as I believe it is, it is a right of all people, endowedy by their creator. Otherwise it is a right granted by our Constitution.

I feel it is hypocritical to try to have it both ways.
8.14.2008 1:29am
Lior:
Didn't the USSC rule that non-citizens don't have 4th amendment rights? As a former non-citizen resident of the US, I was always amused by the very general language of the constitution ("inalienable rights", "shall not be infringed") which is usually interpreted to non-existence by the courts, especially when it comes to non-citizens.
8.14.2008 2:56am
luagha:
Illegal aliens are in the process of committing either a misdemeanor or a felony depending on the circumstances of their entry in the US and their past history. Despite their unalienable rights granted by their creator, we have stated that our government has the ability to additionally punish those in ownership of certain weapons while they are committing such crimes.
8.14.2008 3:00am
FD (mail):
Oh, but this post is about whether noncitizens that are legally in the US have second amendment rights.
People that are in the US legally, even if noncitizens, aren't necessarily committing neither a misdemeanor nor a felony.
8.14.2008 3:54am
J. Aldridge:
Blacks never were allowed to bear arms from day one. I think this answers the question.
8.14.2008 4:00am
Avatar (mail):
I wonder if a policy of reciprocation would work here? Foreign nationals on US soil would gain 2nd Amendment rights to bear arms if, and only if, Americans in their nation also retained such rights. If you're a citizen of a country that won't extend that privilege to Americans, why ought we extend it to you?

Of course, you can take that argument pretty far with a totalitarian state...
8.14.2008 4:39am
cac (mail):
Obviously Avatar is being facetious but as a matter of logic I'm not sure his proposal stacks up. Surely the essence should be whether americans in country X have the same rights as citizens of country X. If so, regardless of whether this does or does not include the right to bear arms, then Xians in America should hav the right to be armed.

Not especially relevant, but you don't have to be a citizen in the UK either to vote or to be elected to Parliament so it's not the case that non citizens are always denied democractic rights. Same used to apply to Australia (or more accurately applied to British citizens) but we got all nationalistic a few years back and now won't permit dual citizens to be MPs.
8.14.2008 5:04am
PersonFromPorlock:
Amusing idea for someone with money to burn: apply for a federal court order forbidding British subjects from entering the US on the grounds that since their own government says they can't be trusted even with pointy things, let alone guns, they must be a danger to the public when loose in America.

Wouldn't work, of course, but the British government's defense would be fun.
8.14.2008 8:14am
Eugene Volokh (www):
Lior: No, it didn't; it did rule in Verdugo-Urquidez that the Fourth Amendment doesn't apply to property that's outside the U.S. and is owned by nonresident aliens. But I'm speaking here of all noncitizens, including resident aliens, wanting to possess guns within the U.S.
8.14.2008 9:42am
Daniel San:
State laws restricting the rights of permanent resident aliens are often subject to equal protection challenges.
8.14.2008 9:59am
Melancton Smith:
J Aldridge wrote:

Blacks never were allowed to bear arms from day one. I think this answers the question.


I wouldn't say "never". You should read Clayton's book, "Armed America".

Regardless, we learn from past mistakes and grow, one would hope.
8.14.2008 10:22am
ParatrooperJJ (mail):
There is an exception to the federal law. If the legal alien has a hunting license, they are permitted to use firearms. That's why at ranges that cater to foreign tourists, they sell them a license before lettign them on the range.
8.14.2008 10:26am
Tony Tutins (mail):
A co-worker once complained the state of Washington would not let him, a permanent resident, buy firearms. His sailboat had been vandalized, and he was discussing his options with the policeman taking the report. The policeman advised him to buy a flare pistol, which (1) one could reasonably have on a sailboat, (2) was not subject to the legal prohibition, and (3) would have a deterrent effect on any miscreant it was pointed at.
8.14.2008 11:29am
Jim at FSU (mail):
Black slaves weren't allowed to own guns, but freed blacks generally were. The gun control laws disarming black people en masse only started in earnest after the civil war.

About the original "natural right vs granted right":
One could argue that the preexisting natural right to own weapons doesn't extend to carrying them in other people's countries. The line between "crowd of heavily armed tourists" and "invading army" is a fine one and people shouldn't have to tolerate bands of armed foreigners in their country, no matter how well behaved they happen to be at any given time. Holding otherwise would lead to all sorts of absurd results.
8.14.2008 11:30am
Jim at FSU (mail):
I'm reminded of the old Polish joke about how Hitler conquered Poland so quickly: the germans marched in backwards and said they were leaving.

Anyway, the point is that if anyone has a natural and legal right to enter your country and carry a weapon openly, there isn't really anything stopping a few hundred thousand vacationing soldiers from visiting your capital while armed. Oh and the country they are from suddenly declares war while they are there... you lose.

Even if a country ever tried such a policy, such countries would soon go extinct due to invasion.
8.14.2008 11:36am
MartyA:
Aren't illegal aliens, by definition, some of the very people on which the right of US citizen self-defense is based? Why would there be a constitutional right for criminals, pirates and other evil doers to keep and bear arms to use against citizens?
8.14.2008 12:06pm
Melancton Smith:
Jim at FSU wrote:

Anyway, the point is that if anyone has a natural and legal right to enter your country and carry a weapon openly, there isn't really anything stopping a few hundred thousand vacationing soldiers from visiting your capital while armed. Oh and the country they are from suddenly declares war while they are there... you lose.


However, this presupposed guilt. It also makes the assumption that those vacationing soldiers bent upon invasion won't stoop to simply acquiring arms illegally. Or maybe, I dunno, using non-arms like say...planes?

About our capitol...it has been burned before...and perhaps they'd want to hit us where it would actually hurt.
8.14.2008 12:08pm
mad the swine (mail):
"Aren't illegal aliens, by definition, some of the very people on which the right of US citizen self-defense is based? Why would there be a constitutional right for criminals, pirates and other evil doers to keep and bear arms to use against citizens?"

It really is amazing how many people see "noncitizen" and assume "illegal alien".
8.14.2008 2:05pm
Nibbles:
Non-citizens are also allowed to import and possess firearms if they have a hunting license. I work with a Canadian with a TN visa (non-immigrant), and he's got several. The paperwork was a monster PITA, though - It takes the ATF so long to process that they changed the regulations between the time he submitted the application and when they got around to looking at it, requiring him to change and re-submit twice.
8.14.2008 2:05pm
Dilan Esper (mail) (www):
Didn't the USSC rule that non-citizens don't have 4th amendment rights?

No, only non-ctiizens located outside the US and without a connection to the country. US v. Verdugo-Urquidez.

Every decision I am aware of has at least assumed that Verdugo has no application to non-citizens within the US.
8.14.2008 2:54pm
John Smith:
I'm a resident alien, Canadian citizen and have found that second amendment rights may depend on your state of residency.

In Ohio I was permitted my second amendment rights, but since moving to Massachusetts it's a different story. State law explicitly states that the second amendment only applies to citizens, so that's me out for another year.

Even when I get my citizenship my locale requires a firearms course, even as a former Army NCO, and my town requires two letters of reference from other residents. Get past all that and I'm still only permitted a firearm with a magazine capacity of eight or less rounds.

Did I mention that approval is entirely at the whim of my Police Chief?

I did enjoy seeing the recent USSC verdict, it's a shame that as a legal resident alien, who did everything properly, I'm still not entitled to the full benefits of the constitution. And thus are unable to defend my family in the most effective way possible.

As my wife wonders, "If they can strip the second amendment from you, what others are null and void?"
8.14.2008 6:29pm
Martin L. Shoemaker:
Let me preface my remark with a statement: I'm a strong Second Amendment supporter, and I think that those who argue that it applies only to the National Guard and other officially sanctioned militias are full of it.

But given that... "A well regulated Militia, being necessary to the security of a free State..." is the justifying cause for "...the right of the people to keep and bear Arms, shall not be infringed." I always saw the Amendment as saying "This right is so important because we want the people to be ready to defend our country." Legal aliens are still not citizens who would be expected to defend our country. So I would read this as saying that the legal aliens do have a right, but not a Constitutional protection that that right shall not be infringed.
8.14.2008 7:01pm
Kirk Hays (mail) (www):
Note that the BATFE's form 4473 (sample here: http://www.atf.gov/forms/4473/ ), which documents the over-the-counter sales of non-NFA rifles, handguns, and shotguns by a licensed dealer, specifically asks whether the purchaser is a citizen, or legal alien.

18 USC 922 generally defines who may purchase a firearm.

Page 3, item 6 of the 4473 summarizes who may purchase among legal aliens:

1) Those with a hunting license or permit; or
2) an official representative of the foreign government; or
3) those who have received an official waiver from the AG of the US.

I know, personally, a number of resident aliens who own and collect firearms. At least one of them buys a hunting license every year, so he can qualify for the above exemption, though he does not hunt.

Kirk
8.14.2008 7:16pm
John Smith:
That's an interesting thought, though given that you can serve in the National Guard, the Reserves, and the Regular Army as a Resident Alien, and many due.

Wouldn't they thus deserve the constitutional right to bear arms to defend themselves, if they are also bearing arms to defend the Constitution?
8.14.2008 7:16pm
PeterM:

John Smith:
In Ohio I was permitted my second amendment rights, but since moving to Massachusetts it's a different story. State law explicitly states that the second amendment only applies to citizens, so that's me out for another year.

Welcome to MA! The MA Supreme Judicial Court has already made it clear that in MA, there is no individual right to keep and bear arms. Comm. v Davis (1976).


Even when I get my citizenship my locale requires a firearms course, even as a former Army NCO, and my town requires two letters of reference from other residents. Get past all that and I'm still only permitted a firearm with a magazine capacity of eight or less rounds.

Did I mention that approval is entirely at the whim of my Police Chief?

As my wife wonders, "If they can strip the second amendment from you, what others are null and void?"


You want a Class A LTC, preferably with no restrictions ("all lawful purposes"). That will allow you to have preban high capacity magazines. Oh yeah, we still have the assault weapons ban. If you want more help on getting your license, go here. You can also look at moving to a more 2A-friendly town, they do exist.

Your wife is right to worry what other rights are null and void. Remember, Beacon Hill sees you as a giant ambulatory ATM card with no withdrawal limit.
8.14.2008 7:45pm
Anders (mail):

I am a Green Card holder (permanent resident) and citizen of Norway. I reside in Colorado and have a CCW license. Never been asked about my citizenship status when pyrchasing guns or obtaing a CCW. Hopefully I am not breaking the law....
8.14.2008 7:46pm
Kevin P. (mail):
There is a lot of ambiguous language in these comments. Please note that for the purpose of federal gun control laws, there are four classes of foreign-born persons:

1) Illegal aliens - these persons are prohibited by 922(g) from possessing any firearm for any reason.

2) Aliens on a non-immigrant visa. These are tourists, students, H1B temporary workers, L1 transfers, etc, often referred to as non-resident aliens. Even they are "non-resident", they could live in the US for extended periods of time. These persons are generally prohibited from possessing firearms BUT if they obtain and maintain a valid hunting license in the US, the federal prohibition is completely removed and they can buy and own guns like any permanent resident alien (see below).

3) Permanent resident aliens - these are immigrants who have been admitted to live here forever. They are a.k.a. LPRs (Lawful Permanent Resident) or green card holders. They are also eligible for conscription and have to register for it like citizens. It is likely that their right to keep and bear arms is constitutionally protected to some degree, since, per Verdugo-Urquidez, they are a "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community", and are therefore part of "the people" whose right to keep and bear arms is protected. Federal gun control law makes no distinction between them and US citizens, with one exception - to buy a firearm, the permanent resident alien must have resided in that state for 90 days.

4) Naturalized citizens - they were once permanent resident aliens, and are now citizens. They have the same rights as natural-born citizens.

There is of course a second layer of regulation at the state level. In general, most states do not distinguish between or discriminate against non-citizens. There are some exceptions: Massachusetts, Hawaii and Washington come to mind, where even permanent residents are prohibited or burdened from owning guns, even for defense of the home. In addition, a few states restrict concealed carry licenses to US citizens.

I am a naturalized citizen who went through stages (2), (3) and (4), owning firearms legally at all points.
8.14.2008 9:18pm
SKardner (mail):
Blacks never were allowed to bear arms from day one. I think this answers the question.





Did you read Heller? This argument is refuted thoroughly.
8.15.2008 12:29am
ReaderY:
Quite possibly. Eisentrager strongly suggested that residents might be members of the people, and Verdugo-Irquidez did nothing to undo that. Verdugo-Irquidez spoke in terms of those "who are part of the national community or who have otherwise developed sufficient connection to this country to be considered part of that community." That 'otherwise' would appear to leave open a certain amount of wiggle-room. Clearly it must cover a class who isn't fully part of the national community, since otherwise it wouldn't add any meaning at all. What degree of connection is sufficient? It would seem an unanswered question. It clearly wouldn't cover people here as tourists or people apprehended near the border or after a short stay here. It may depend on who gets to do the considering, whether Congress has flexibility to decide who has enough of a connection to warrant rights belonging to the people, or whether this is a matter the courts will decide.
8.15.2008 1:17am
Clayton E. Cramer (mail) (www):

State v. Vlacil 645 P.2d 677 (Utah 1982) (rejecting such a claim without much explanation, under a state constitutional provision that speaks of "the people" rather than citizens)
Vlacil is a very weak decision for many reasons. Chief Justice Hall made an argument based on the Second Amendment--even though Vlacil had challenged the law on the Utah RKBA provision--not the Second Amendment. Another problem is that Hall's decision was built partially on State v. Beorchia, 530 P.2d 813 (Utah 1974) with no awareness that Beorchia relied on In Re Ramirez (Cal. 1924)--which was overturned in People v. Rappard, 28 Cal.App.3d 302 (1972).

Of course, In Re Ramirez upheld a 1923 law that was openly stated by supporters as a method for disarming Chinese and Hispanics, a collection of provisions that included the direct ancestor of California's current concealed weapon permit law.
8.15.2008 11:17am
Clayton E. Cramer (mail) (www):

In Ohio I was permitted my second amendment rights, but since moving to Massachusetts it's a different story. State law explicitly states that the second amendment only applies to citizens, so that's me out for another year.
Actually, the operative case law is Commonwealth v. Davis (Mass. 1976) which ruled that the state's RKBA provision does not protect an individual right. Like many of the decisions of that period, it's wrong. The "common defence" language of the Mass. Const. RKBA provision was included because John Adams, who largely wrote the 1780 Mass. Const., appears to have been concerned about private militias. His Defense of the Constitutions of the United States of America, published several years later, expressed this concern--but also stated that while the carrying of weapons could be regulated for this purpose, the individual carrying arms for private self-defense could not.
8.15.2008 11:21am
Clayton E. Cramer (mail) (www):

J Aldridge wrote:



Blacks never were allowed to bear arms from day one. I think this answers the question.





I wouldn't say "never". You should read Clayton's book, "Armed America".

Regardless, we learn from past mistakes and grow, one would hope.
Wow! A member of the very small elite that bought and read my book! Thank you!

The situation with regard to blacks and guns changed significantly over time. Free blacks were allowed to own guns as late as 1680 in Virginia, and in a number of colonies, such as Maryland, were apparently never disarmed. Masters were required to arm their slaves for militia duty in Virginia as late as 1640, and as late as 1720 in South Carolina--which provisions of law providing for slaves who killed enemies in battle to receive their freedom.

In general, slaves could (and often did) possess firearms with permission of their masters--and this was permitted into the 19th century. This should tell you something about how horrible slavery was in the early period, that masters trusted at least some slaves to have guns, and use for them for hunting, and for defense of the plantation. One of the motivations for the 1743 law requiring all men to carry guns to church (and requiring elders to search them on entry to make sure that they were armed) was that a previous law was being widely ignored. Lazy masters were having their slaves bring their guns to church instead.

In the antebellum period, especially after Turner's Rebellion (1831), free blacks were often more restricted than slaves with respect to arms possession. While states like North Carolina had a licensing provision for free blacks to own guns, in many slave states, free blacks were completely prohibited from gun ownership--while slaves were allowed with permission of their master.
8.15.2008 11:48am
Alan K. Henderson (mail) (www):
In Ohio I was permitted my second amendment rights, but since moving to Massachusetts it's a different story. State law explicitly states that the second amendment only applies to citizens, so that's me out for another year.
Now there's fodder for a Supreme Court case. Since the Constitution has one proper interpretation and not fifty, and states dont' have the privilege of restricting federally-guaranteed rights, that issue should be settled pronto.

The phrase "the people" appears twice in the main body of the Constition, and in both cases is qualified in such a wat that specifically denotes citizens (Preamble, Article 1, Section 2). "The people" comes with no such qualifiers in Amendments 1, 2, 4, 9 and 10. Will Massachusetts be consistent and deny noncitizens the right to peaceable assembly?
8.15.2008 3:54pm
Seerak (mail):
Now there's fodder for a Supreme Court case. Since the Constitution has one proper interpretation and not fifty, and states dont' have the privilege of restricting federally-guaranteed rights, that issue should be settled pronto.

The European idea of rights as inherent to citizenship (a State-granted legal status) has long been seeping into the way Americans think about the Constitution, displacing the original American concept of rights as inherent to human beings per se (a metaphysical status beyond State power). In the latter view, the answer is plainly "yes", the right of self-defense is not subject to State revocation or discrimination (I'll leave the regulation of said right aside for now).

But in practice, the citizenship view of rights is fairly common. I know of two examples with regard to Amendment II: the State of Oregon, which has a mild restriction on concealed-carry permits to citizens *and* intending citizens (those with an application pending), and the State of Washington which mandates an Illinois-style "FOID" card for resident non-citizens. Otherwise non-citizens are barred from possession.
8.15.2008 4:52pm
English Mike:
Note that since 2005, legal non resident aliens are no longer permitted to purchase firearms, though as pointed out, those with a valid hunting permit are allowed to possess them.
I've been through this myself, as I visit the US on a frequent basis to hunt &shoot.
8.15.2008 7:53pm