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Second Amendment, Illegal Aliens, and Noncitizens More Generally:

U.S. v. Guerrero-Leco, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008), holds that the Second Amendment doesn't apply to illegal aliens. The court correctly declines to follow pre-Heller Fourth Circuit precedent that upheld the ban on illegal aliens' possession of guns, and instead reasons itself from Heller. The reasoning, unfortunately, isn't very detailed:

The Supreme Court did not find that all individuals present in America are protected by the Second Amendment. Rather, the Court described that protection as belonging to American citizens [footnote] who "inherited [it] from our English ancestors." Nothing in the opinion purports to extend the Second Amendment's protection to those outside the American political community like the defendant who allegedly entered and remained unlawfully in the country. This inferior court will not read into Heller a more expansive right than recognized therein.

[Footnote:] Examples include: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation," Id. at 2799 (emphasis in original); "this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen," Id. at 2806 (quoting Andrews v. State, 50 Tenn. 165, 183 (1871)(ellipsis in original; internal quotation marks omitted)); "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 2815-16; "[The District's requirement] makes it impossible for citizens to use [firearms in the home] for the core lawful purpose of self-defense and is hence unconstitutional," Id. at 2818.

But I doubt that the Court's casual references to citizens were a deliberate judgment that the right only applies to citizens (and thus not to, for instance, legally resident aliens), or should be treated as holding or even strong dictum on the matter. "Citizen" is sometimes loosely used, including in court opinions, to generally mean individuals; and more broadly courts may talk about the rights of citizens (who are the bulk of rightsholders) without foreclosing the possibility that noncitizens might have such rights as well. Consider, for instance, the full context for the first passage quoted in the footnote: "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." The Court wasn't suggesting that the First Amendment protects only citizens (a view that the Court has generally expressly rejected); it was using citizens to mean something broader (or at least saying that citizens have the right without denying that noncitizens might as well).

There are good and careful arguments that can be made in favor of the conclusion that the Second Amendment doesn't apply to illegal aliens -- such as those put forth by a magistrate judge in the Southern District of Florida in August -- but I don't think that the court's argument here is by itself persuasive.

J. Aldridge:
If we "inherited [it] from our English ancestors" then Heller is really wrong because there was no right of English to possess fire-arms outside of what was permissible by law.
10.14.2008 8:32pm
therut (mail):
Our Constitution expands on the Right of Englishmen and declares it a Right Of the People. We made it better more democratic and not at the whims of our betters. That ole subject vs WE the People thing.
10.14.2008 9:06pm
Freddy Hill:
I'm a long-time very legal resident of this country. I believe that it is up to the American people, though their constitutional channels, to decide if I have a right to bear arms in this Republic, regardless of what my opinions may be. After all, if I want my opinion to count I have the path to citizenship widely open to me.

That said, I find the apparently willful conflation between legal and illegal immigration troubling. Some in the right do it because they'd rather close the borders without exceptions while some in the left want to wipe out the very concept of American citizenship. It is seemingly in the interest of both sides to mix legal and illegal immigration in a big lump.

Most troubling is the failure of some courts of law to mention the difference even in passing.
10.14.2008 9:55pm
Dilan Esper (mail) (www):
Allow me to stick up for the rights of illegal immigrants to bear arms.

First of all, the best interpretation of "right of the people" language in constitutional provisions is that it applies to everyone in the country. US v. Verdugo-Urquidez strongly suggests this.

Second, it would be difficult to strip illegal immigrants of this right without also stripping them of other rights, like Fourth Amendment rights against illegal searches and seizures. An interpretation that illegal immigrants don't have the right to bear arms is an interpretation that permits the border patrol to beat illegal immigrants senseless while arresting them without committing an unreasonable seizure.

Third, on a policy level, illegal immigrants often live in the most high crime neighborhoods, in the shadows, and are loathe to call on police protection due to fear of deportation. The case for a right to keep and bear arms is extremely strong.
10.15.2008 12:20am
Ken Arromdee:
Third, on a policy level, illegal immigrants often live in the most high crime neighborhoods, in the shadows, and are loathe to call on police protection due to fear of deportation. The case for a right to keep and bear arms is extremely strong.

No, because it's totally proper to deport illegal aliens. Deporting illegal aliens is neither a violation of their rights nor is it something we want to avoid. There's no reason to accommodate an illegal alien's fear of being deported any more than we should accommodate a fugitive bank robber's fear of being arrested.
10.15.2008 12:35am
Chris 24601 (mail) (www):
If the 2A gets incorporated against states, this is one place where it will be critical whether the vehicle is a resurrected P-or-I clause (which applies only to citizens) or SDP (which applies to persons).
10.15.2008 12:40am
Cold Warrior:
Dilan said:


First of all, the best interpretation of "right of the people" language in constitutional provisions is that it applies to everyone in the country. US v. Verdugo-Urquidez strongly suggests this.


"Strongly suggests?" I don't think so. The SCt simply did not reach the issue. Verdugo-Urquidez tells us that a non-U.S. citizen/non-U.S. resident alien abroad cannot invoke the protections of the 4th A. because such an alien lacks a substantial relationship with "the people" of the United States, as that term is used in the 4th Amendment. Other cases will have to resolve the related issues. I think everyone agrees that an alien lawfully admitted for permanent residence and actually residing in the USA fits the bill. A nonimmigrant lawfully residing in the USA? Good question, but I think the "4th Amendment applies" theory has the better argument. "Nonimmigrant overstay continuing to reside here? A closer call. Illegal entrant who has never had a right to be here, much less live here? A very plausible place to draw the line. Alien expelled from the USA following a full administrative process, with access to judicial review of that process, who then reenters illegally? Judge Cassell said no way, and I see no compelling argument to the contrary.


Second, it would be difficult to strip illegal immigrants of this right without also stripping them of other rights, like Fourth Amendment rights against illegal searches and seizures. An interpretation that illegal immigrants don't have the right to bear arms is an interpretation that permits the border patrol to beat illegal immigrants senseless while arresting them without committing an unreasonable seizure.


Your premise is wrong. Nobody is "stripping" illegal aliens of anything. If the term "the people" means anything, then they've never had such rights. So let's not worry about "stripping" them of other rights. Let's worry about figuring out what rights they have -- and have always had -- in the first place. Dilan, you love the "beating illegal immigrants senseless" strawman. "Beating illegal immigrants senseless" is a criminal act. It is also a criminal act in, for example, the United Kingdom, which lacks a written constitution; obviously, extending constitutional protections to illegal aliens is not necessary for their protection from "senseless beatings." The question at hand is a simpler one: is someone who entered (reentered?) illegally entitled to the protections we extended to "the people," including the ability to exclude otherwise compelling evidence of guilt of a serious criminal offense because such evidence was obtained without a warrant or otherwise in contravention of the protections the 4th Amendment applies to "the people?" By the way, do you believe Verdugo-Urquidez was wrongly decided? Your comments "strongly suggest" so. In that case, you apparently believe that an alien who has never even been in the United States has the right to exclude evidence from a U.S. prosecution if that evidence was obtained without a warrant from a U.S. magistrate, even if that magistrate has no authority to issue a warrant for a search wholly in a foreign country, and even if the search was perfectly valid under the law of the alien's own country. I don't think I'm mischaracterizing your argument here; isn't this what you're saying? If not, what are you saying?


Third, on a policy level, illegal immigrants often live in the most high crime neighborhoods, in the shadows, and are loathe to call on police protection due to fear of deportation. The case for a right to keep and bear arms is extremely strong.


Maybe so. Maybe not. Maybe illegal immigrants are, based on economic necessity, forced to live in dangerous areas. Maybe they agglomerate in previously-safer areas and make them more dangerous. Maybe they do neither of the above. Do we really want judges to make these findings and apply the 4th Amendment accordingly? Here's a more interesting question: couldn't Congress legislate under the 2nd Amendment and decide exactly who constitutes "the people?" And here the kicker: isn't that exactly what they have done? See, e.g., 18 USC 922(g): it is a crime for an illegal alien to possess a firearm. It is a crime for a nonimmigrant alien in valid status to possess a firearm unless he/she has a valid hunting license (or under certain other express exceptions). An alien lawfully admitted for permanent residence may possess a firearm in exactly the same way a U.S. citizen can. Isn't that the better solution? Or should certain unelected life-tenured officials (judges) be able to conduct their own seat-of-the-pants cost-benefit analysis, weighing the need for illegal aliens to protect themselves in unsafe neighborhoods against the possibility that illegal aliens may use firearms to actually terrorize citizens and legal aliens?
10.15.2008 2:49am
J. Aldridge:
Dilan Esper said: "First of all, the best interpretation of "right of the people" language in constitutional provisions is that it applies to everyone in the country. US v. Verdugo-Urquidez strongly suggests this."

John Bingham defined "people" under the constitution to mean "the whole body of free citizens." Persons applies to all persons in the country, except under Section 2 of the Fourteenth Amendment "counting the whole number of persons in each State" because it was said Section One controls who these persons are. (talk about confusion!)
10.15.2008 3:26am
PersonFromPorlock:
Since 'natural rights' exist in a state of nature, i.e., where there is no government, the question of citizenship is moot when dealing with them. If we are going to frame the discussion of gun rights in terms of self defense, as Heller does, then the real question is whether self defense is a natural right. That question seems to answer itself.
10.15.2008 8:17am
Sarcastro (www):
PersonFromPorlock yeah! Screw property rights, they aren't natural, except as I have my guns! I always liked Hobbes a lot more than that ponce Locke or the cretins Bentham and Burke anyway!

Nasty Brutish and Short FTW!
10.15.2008 10:09am
Melancton Smith:
Yes, PersonFromPorlock. How can one argue that we have a natural (or god-given to some) right to self-defense and then say it only applies to US citizens.

Then again, same for habeous. This is another reason why I think Heller and Boumediene should have been 9-0 instead of 5-4.
10.15.2008 10:55am
LarryA (mail) (www):
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

A case might be made that persons illegally in the U.S. can be denied rights on the same basis as felons, but it's weak. The cure here is deportation, which resolves the issue.

Legal residents? No way should they be denied.
10.15.2008 1:30pm
Dilan Esper (mail) (www):
A case might be made that persons illegally in the U.S. can be denied rights on the same basis as felons, but it's weak. The cure here is deportation, which resolves the issue.

This is the proper response to all the bloviating above. Illegal immigrants can be deported. That doesn't mean that until they are deported, they have no rights.

And again, if your vehicle for denying them rights is to say that they are not part of the "people" in the Second Amendment, then that same rationale would permit the torture or killing of an illegal immigrant during his or her arrest under the Fourth Amendment, because only the "people" have protections against unreasonable seizures.

So the only plausible interpretation of the Bill of Rights is that it extends to illegal immigrants. They can be deported, but until we deport them (with proper due process), they should be able to own a gun to protect themselves.
10.15.2008 3:58pm
zippypinhead:
At bottom I view this District Court decision as yet another trial court prediction that most of 18 U.S.C. ยง922(g)'s firearms possession bans are going to survive Heller. Justice Scalia's dicta in Heller directly endorsed the validity of 922(g)(1) and (4), and by implication (2) [felons, fugitives, mental defectives]. Although I know some regular commenters here disagree, IMHO it's not much of a stretch to uphold the prohibitions on illegal drug users/addicts under 922(g)(3) [as at least one District Court already did], or illegal aliens under 922(g)(5)(A) [as this case does]. The common analysis: law-abiding citizens have Second Amendment rights, and lawbreakers (or at least significant lawbreakers) don't. Why? That analysis is ultimately above my pay grade, but I would argue that the known nexis between firearms and criminal conduct make prohibiting lawbreakers from possessing firearms sufficient to survive heightened judicial standards of review (maybe even strict scrutiny).

I suspect the most interesting issues are going to be 922(g)(8) [civil restraining orders] and 922(g)(9), [misdemeanor domestic violence convictions]. The (g)(9) case that SCOTUS granted cert on doesn't directly touch the Second Amendment issue so much as mere statutory construction questions, but I suspect we'll be able to get a read on the likely validity of this disqualification from the majority opinion's dicta if nothing else.
10.15.2008 5:31pm
Melancton Smith:
McCain is one of the worst debators ever.

He let Obama, for instance, completely dance around the 2nd Amendment when he was talking about how States can't be allowed to pass laws infringing fundamental rights like the First Amendment, and uh...other amendments. And of course, Roe v. Wade, the 0th Amendment.
10.15.2008 11:22pm