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The NRA Clinging to Guns and Pro-Immigrant Sentiment:

Federal law doesn't bar permanent resident noncitizens from getting guns, and neither does Washington State law. But Washington law requires that noncitizens get a special alien firearm license, and the state Department of Licensing is refusing to issue such licenses:

We are unable to issue alien firearms licenses at this time.

The Federal Bureau of Investigation (FBI) has told law enforcement agencies it is against federal law to use federal databases for background checks if they share the results with a non-criminal justice agency such as the Department of Licensing. As a result:
* Law enforcement agencies cannot perform the background checks required by state law for issuing an alien firearms licenses.
* We cannot complete the application process or issue alien firearms licenses.

The NRA, the Second Amendment Foundation, and several permanent residents who live in Washington are now suing, claiming this violates the Second Amendment (which they argue is incorporated against the states via the Fourteenth Amendment) as well as the Equal Protection Clause and 42 U.S.C. § 1981. For more on the general legal theories involved, see this post of mine from three months ago. For more on the litigation, see this Seattle Post-Intelligencer article. Note that the Washington Constitution's right to bear arms is of no help to noncitizens, because — unlike some other state constitutions (e.g., Nebraska's) — the Washington Constitution secures the right only to each "individual citizen."

By the way, here's the 42 U.S.C. § 1981 theory, which my earlier post didn't discuss:

1. This statute — enacted shortly after the Civil War — provides (emphasis added), "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."

2. This doesn't just bar race discrimination, but also discrimination against noncitizens (as to the subjects involved).

3. The state constitutional provision securing a right to bear arms, and state laws related to concealed carry licenses, are "laws ... for the security of persons and property."

4. Therefore, discrimination against "lawfully admitted resident aliens" violates § 1981.

Note: Though the logic of this statutory argument might extend beyond lawfully admitted resident aliens, federal gun statutes generally bar gun possession by illegal aliens and by most aliens who have nonimmigrant visas. These statutes likely implicitly limit § 1981 as to those kinds of aliens. And even if § 1981 continues to preempt state laws limiting ownership by such non-lawful-immigrant noncitizens, federal law would make such ownership illegal and thus make the state law question largely moot.

Thanks to Venkat Balasubramani for the pointer.

FlimFlamSam:
You will find no more of an ardent Second Amendment supporter than me, but I am uncomfortable with aliens possessing guns in the United States as a policy matter, and there's clearly no constitutional right. Maybe 42 USC 1981 authorizes it, certainly seems to on its face, but seems like a bad idea.

I realize that aliens should be able to defend themselves in the event of crime, but the threat of a foreign uprising is scary.
11.7.2008 1:05pm
Happyshooter:
So am I correct there are three possible claims?

1. The FBI is preventing second amendment related information, where it gives the same data to non-law enforcment bodies such as FOC; and

2. The state's requirements for a license for non-citizens where such a license is a de facto ban is a violation of second amendment rights; and

3. Requiring a license for non-citizens is a 1981 violation.
11.7.2008 1:06pm
einhverfr (mail) (www):
I for one am glad that the NRA is championing this matter. I would further point out that non-citizen residents can serve in our military so I see no reason that the second amendment should not apply equally to such people.
11.7.2008 1:18pm
Eugene Volokh (www):
FlimFlamSam: If you "realize that aliens should be able to defend themselves in the event of crime," and think that guns are vital tools for defending oneself oneself against crime (as I infer you do, though correct me if I'm wrong), then is it really right to deny aliens this life-saving ability?

Or is it that you think it is presumptively wrong, but this wrong is justified by an overwhelming interest in national security? And, if so, do you think that a risk of a "foreign uprising" by aliens is really great enough to act as justification for denying people a basic human right?
11.7.2008 1:22pm
Soronel Haetir (mail):
Sam,

would agree with you wrt non-resident and illegal aliens, but would strongly disagree when speaking of lawfully (and especially permanent) resident aliens. Such an alien has developed a suffeciently strong connection to the US to warrent a strong presumption of having the right IMO.
11.7.2008 1:29pm
Adam J:
FlimFlamSam- "I realize that aliens should be able to defend themselves in the event of crime, but the threat of a foreign uprising is scary." Do you really think this is a credible threat?
11.7.2008 1:33pm
frankcross (mail):
For some of us, what is scary is people who think that the threat of a foreign uprising is scary.
11.7.2008 1:37pm
Steve:
If you "realize that aliens should be able to defend themselves in the event of crime," and think that guns are vital tools for defending oneself oneself against crime (as I infer you do, though correct me if I'm wrong), then is it really right to deny aliens this life-saving ability?

Well, I think ex-cons should be able to defend themselves in the event of crime. Self-defense is a human right, after all. Yet even Justice Scalia was willing to proclaim such a restriction on the right to bear arms as permissible without a second thought.
11.7.2008 1:49pm
Eugene Volokh (www):
Steve: Indeed, but for convicted felons the rationale is that the felons have voluntarily done something quite bad that justifies stripping them of various rights -- of liberty for a while, and of gun rights for a longer while (maybe even for life, though in many states such gun rights can be restored at some point). That doesn't seem to apply to noncitizen permanent residents, it seems to me.

Also, the danger of violent crime by felons is a pretty real one, while the danger of violent uprising by noncitizen permanent residents strikes me as much more hypothetical (though I would focus more on the voluntary-bad-act theory than on the danger theory).
11.7.2008 1:56pm
BarrySanders20:
Why doesn't a bureaucrat state DOJ receive the FBI background check info and tell the bureaucrat in the state licencing office across the hall whether he can stamp the bureaucratic form allowing the lawfully admitted resident alien (who has already endured more bureaucracy from the INS than any thousand natural-born citizens from all agencies combined), thereby allowing that person to exercise his constitiutional right to own a gun?

Unless, of course, the purpose is to make it as difficult and cumbersome as possible, requiring lawyers, significant cost, etc.

Some constitutional rights are more equal than others.
11.7.2008 1:57pm
Dan M.:
If you can't trust them with guns, they should be locked up or deported. If they're in this country and they're not locked up, sell them guns and send them on their way.
11.7.2008 1:58pm
GV:

Also, the danger of violent crime by felons is a pretty real one . . .


On what basis do you think this is true? Committing perjury is a felony. Is there a "pretty real" risk that someone who has committed perjury will committ a violent crime? Is there a pretty real risk that, say, Ted Stevens (who was convicted of a felony) will commit a violent crime?

I appreciate efforts by people to expand gun rights to everyone, but I really wish felons as a class wouldn't be thrown under the bus.
11.7.2008 2:00pm
einhverfr (mail) (www):

Well, I think ex-cons should be able to defend themselves in the event of crime. Self-defense is a human right, after all. Yet even Justice Scalia was willing to proclaim such a restriction on the right to bear arms as permissible without a second thought.


There is a difference between ex-cons and immigrants. If the danger to our republic by non-citizen residents is so great, why don't we prevent them from serving in our military or our police forces?

I don't really see a rational basis for opposing immigrant gun purchases as a class. It seems to have less basis than, say, blocking people from buying or guns because they live in certain zip codes (say, for example, in DC).
11.7.2008 2:01pm
whit:
good for the NRA. this also emphasizes the lie when those on the left fail to distinguish between those who are against ILLEGAL immigration, and those who are anti-immigrant.

i am 100% the former, but definitely not the latter.

everybody is missing a big aspect of WA firearms law here.

in WA state, it is legal to carry a firearm in the open (ie NOT concealed) and one need not HAVE a license of any sort to do so. as long as you are not otherwise prohibited from carrying (convicted felon, etc.) one can carry in the open w/o a permit.

i am assuming based on the original post that since the immigrants are not citizens, that they could not carry in the open? or could they. it is mentioned that the WA state const. references this right , as a right of citizens.

that is an interesting question for me.

if it wasn't legal, what crime could they be charged with, for carrying in the open?
11.7.2008 2:01pm
Pol Mordreth (mail):
Whit,
IANAL, but from the way I read the article and the laws, the state is requiring a license to purchase / possess a firearm in the first place, not to carry. A non-citizen is barred from possessing a firearm in WA without a license. Not sure how that gets enforced, though, since private sales aren't banned in WA, and you don't do a background check on a private transfer.

respectfully,
Pol
11.7.2008 2:19pm
Dave Hardy (mail) (www):
"Unless, of course, the purpose is to make it as difficult and cumbersome as possible, requiring lawyers, significant cost, etc. "

Bingo. Understand that the alien has already gone thru an FBI background check to buy the gun. In the course of that, given the federal form, he's provided his alien registration number.
11.7.2008 2:21pm
Light Hearted (mail):
EV: "Also, the danger of violent crime by felons is a pretty real one"

Is it? Perhaps this was true at one time, but hasn't there been a radical escalation of federal crimes in the last generation or two? Aren't most of them felonies? Aren't a large percentage of them non-violent?

If my assumptions are correct, it seems bizarre to both deplore the growth in these laws, which I'm confident at least some VC bloggers do, while at the same time being strangely quiescent in the associated loss of a basic right, even after time served.

Is there some grave conceptual or technical problem in restricting the loss of 2nd amendment rights to VIOLENT felonies?
11.7.2008 2:24pm
frankcross (mail):
I don't think you want to go with the risk of future crime, EV. As people have noted, it wants empirical evidence. And even if it were empirically supported, you would find other empirical associations. Would high levels of handgun crime by DC residents justify a restriction? Generally or perhaps on a subgroup (young black males)?

You could justify the felon restraint simply on the grounds that this is something you give up when you commit and are convicted of a felony.

I'm still waiting, though, for an answer about why denying the 2nd Amendment to felons is constitutional. Scalia gave only an unsupported assertion. The question has been repeatedly posed. And if it's answered, I haven't seen it.
11.7.2008 2:34pm
hattio1:
GV says;

On what basis do you think this is true? Committing perjury is a felony. Is there a "pretty real" risk that someone who has committed perjury will committ a violent crime? Is there a pretty real risk that, say, Ted Stevens (who was convicted of a felony) will commit a violent crime?

I appreciate efforts by people to expand gun rights to everyone, but I really wish felons as a class wouldn't be thrown under the bus.


Hear, Hear.
11.7.2008 2:41pm
starrydeceases:
This would seem like a pretty much open and shut case as regards a 1981 challenge, but it will be interesting to hear the opinion on incorporation.

FlimFlamSam: Try reading the Heller decision again, especially as regards Verdugo-Urquidez, and the definition as to what constitutes "the people". Certainly, a lawfully admitted permanent resident alien has established a clear and close enough identification with the United States to warrant protection.
11.7.2008 2:57pm
UW3L:
I must be missing something here - DOL requires a criminal background check to issue concealed pistol licenses. Isn't that also going to be a federal database background check? Shouldn't DOL also be "unable" to issue concealed pistol licenses "at this time" to *anybody*, American citizen or foreign national? The FAQ does not say whether they're checking some other database for concealed carry than they're checking for AFLs, one that somehow isn't subject to the FBI's prohibition - but that seems unlikely. What am I missing?

Don't mess with Bellevue - with the Second Amendment Foundation, IJ, and PLF (and Wade's!) all located in Eastside, they're not gonna give the state much wiggle room for sheisty maneuvers.
11.7.2008 3:28pm
Federale (mail) (www):
Wrong there, "persons" in the law and in the 14th Amendment refers citizens and former slaves, not aliens. No one at that time used persons to refer to aliens. Persons was used because slaves were not citizens before the post war amendments and laws. You see they took the Constitution seriously back then and just did not make things up. It is without a doubt that neither the Founders or the authors of the post-Civil War amendements did not want to give rights to aliens, as it is clear that if aliens can buy guns, or have the rights to habeous corpus when held overseas, that they can vote as well. The problem is that people today do not think, but just say that something is so. Well, "persons" refers to citizens regardless of former state of servitude and members of the commonweal, not aliens.
11.7.2008 3:34pm
Pol Mordreth (mail):
UW3L,
Although I'm not certain how it's done in WA, here in TN the background check for a carry permit is done at the state level. It's a TBI check, not an FBI check. The WA DOL states in the letter that they sent out to the affected Aliens that they were unable to use the 'Immigration Alien Query' along with NCIC and another database to confirm that the Alien was here lawfully. So, I don't believe that they are using the same databases necessarily.

Respectfully,
Pol
11.7.2008 3:38pm
Houston Lawyer:
I thought that states were prohibited from discriminating against foreigners or is that just the illegal ones?

What if the state required you to prove that you were in the country legally to rent an appartment or buy a car. Would the courts not strike that down?
11.7.2008 3:42pm
UW3L:
Thanks Pol. It had occurred to me that maybe it was a state level database, but then I thought, wouldn't you want to check whether your concealed carry applicant wasn't a felon in some other state, or under federal law? Shows what I know...
11.7.2008 3:49pm
ShelbyC:
Aliens don't need firearms anyway, what with all the lasers and everything.
11.7.2008 3:53pm
FlimFlamSam:
Prof. Volokh,

You ask:


Or is it that you think it is presumptively wrong, but this wrong is justified by an overwhelming interest in national security? And, if so, do you think that a risk of a "foreign uprising" by aliens is really great enough to act as justification for denying people a basic human right?


Yes, that's where I was. But after thinking about the issue throughout the day, I have to do something no blog commenter has ever done: change my mind!

I have been persuaded that resident aliens should have the same right to keep and bear arms as citizens.
11.7.2008 4:25pm
AKD:
Woot!
11.7.2008 4:34pm
Eugene Volokh (www):
Federale: Your theory that "person" didn't include "aliens" is interesting, but I didn't notice any citations to sources that support it -- any chance you might pass those along?

A quick search, by the way, uncovered some cases that seem to treat "person" as including "alien," e.g., Smith v. Turner, 48 U.S. 283 (1849) ("Congress passed an act at its second session, (March 26th, 1790,) providing that any alien, being a free white person, who shall have resided in the United States two years, and in any one State one year, may become a citizen by taking an oath ..."). Perhaps "person" "in the law and in the Fourteenth Amendment" did mean something narrower than this, but it would be interesting to see the sources supporting that assertion.
11.7.2008 4:53pm
Dave Hardy (mail) (www):
"Wrong there, "persons" in the law and in the 14th Amendment refers citizens and former slaves, not aliens. No one at that time used persons to refer to aliens."

Leg history of 42 USC 1981, as I recall, was that it originally protected "citizens" as enacted in 1866, then was amended in 1870 to protect "persons." We were getting a wave of German immigration that tended to vote Republican.
11.7.2008 5:53pm
Dilan Esper (mail) (www):
I will repeat what I said in the other thread. I think that Verdugo-Urquidez' discussion of the difference between "persons" and "people" is silly and pernicious, and that in any event the case has been properly interpreted to not deny 4th Amendment rights to anyone in the country.

Thus, I think all persons within the jurisdiction of the United States, alien and citizen, have a Second Amendment right (subject to whatever restrictions are permitted under that provision).
11.7.2008 6:37pm
JKB:
The WA law is completely idiotic as applied to aliens granted lawful permanent residence in the US. An alien granted permanent residence in the US has been investigated and vetted prior to that grant. They are not considered a security risk anymore than a citizen. They are required to register for Selective Service. They may work in any job that does not require citizenship for security reasons.

Under the export control laws, a lawful permanent resident of the US is treated just a as a citizen in regards to release of technology, technical data, training, etc. ("deemed export) about controlled items incident to employment, research or discussion even in the US. (Classified technology releases depend on classification restrictions) Releases that were the alien NOT a lawful permanent resident would subject the person who released the information to them to criminal prosecution.
11.7.2008 10:27pm
Kevin Murphy:
I must be missing something here - DOL requires a criminal background check to issue concealed pistol licenses. Isn't that also going to be a federal database background check? Shouldn't DOL also be "unable" to issue concealed pistol licenses "at this time" to *anybody*, American citizen or foreign national? The FAQ does not say whether they're checking some other database for concealed carry than they're checking for AFLs, one that somehow isn't subject to the FBI's prohibition - but that seems unlikely. What am I missing?


To take this further, most states require an FBI background check for granting many professional licenses (e.g. chiropractor, contractor), and the FBI seems to have no problem with these. Certainly some of these professions aren't criminal.

It sounds a lot like a bureaucratic roadblock tossed up the a jerk in the Washington State Bureau of Licensing.
11.8.2008 1:31am
John Smith:
As a resident alien living in Massachusetts I'm not able to bear arms period.

The larger point was immediately made by my wife after learning of the restriction: "So if the 2nd amendment doesn't apply, what other parts of the Constitution will they take from you next?"

It's the rather disconcerting precedent that troubles us. If you're here legally, patiently waiting your time until able to apply for citizenship, the Constitution is supposed to apply.

If the state can take the 2nd amendment from legal resident aliens, then why not the 1st, or others?

Resident aliens are required to live by the laws founded in the Constitution, but are not protected by the same Constitution?
11.8.2008 3:21pm
ReaderY:
The right to keep and bear arms is a right of the people. Thus, only the people have a right to keep and bear arms. Certain provisions of the constitution apply only to the people.

Roe v. Wade made these distinctions critical. One may think the distinction between a "person" and a "non-person" "silly and pernicious, but the the fact of the matter is that the Supreme Court made its very legitimacy depend on demanding that people take these sorts of distinctions extremely, extremely seriously. The distinction between people and non-people is just as critical as the distinction between person and non-person. It's just as fundamental to our constitution. Objections represent the same sort of moral and religous beliefs in the one case as in the other. If moral and religious beliefs that the relevent distinction is "silly and pernicious" were permitted sway in the one case, they might get a footing in the other.

I personally think that the people should be entitled to override these distinctions if they wish in both cases. But the Supreme Court has said otherwise. Certainly the people and the states are permitted to enact laws tha implement them.

Some states have very liberal late-term abortion laws, standing on the person-non-person distinction even when the courts permit the states to give non-persons slightly more protection if they wish. If one doesn't object to those, one can hardly object to laws that decline optional protection for non-people.
11.8.2008 8:23pm
Dilan Esper (mail) (www):
Roe v. Wade made these distinctions critical. One may think the distinction between a "person" and a "non-person" "silly and pernicious, but the the fact of the matter is that the Supreme Court made its very legitimacy depend on demanding that people take these sorts of distinctions extremely, extremely seriously.

The difference between "people" and "persons" is pure semantics.

In contrast, the difference between a fetus inside the womb and a baby outside of it is important and crucial, especially since the competing interests of women are affected by it.
11.8.2008 10:23pm
markm (mail):
As BarrySanders20 pointed out, such a restriction is no problem if the state agencies want to issue the licenses to qualifying persons. The licensing agency just asks a law enforcement agency to perform the checking and return just a yes or no answer. There could be an issue of costs being shifted from the agency that has the budgeted manpower for the clerical work to another agency, but I doubt that legal aliens put in for firearms permits often enough to really place a burden on the state police (or whomever). And I don't see how other licensing is done without either violating the same federal law, or routinely involving state law enforcement, anyhow.

So what's involved here is just bureaucratic obstructiveness when the subject is guns. And it sounds like the state law violates section 1981, too.
11.9.2008 5:53pm