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Limiting Gun Rights for Illegal Immigrants

A U.S. Court of Appeals rules that illegal immigrants aren’t among the folks protected by the Second Amendment. I’ve always found the logic for this a bit dubious, even post Heller. If the Second Amendment really is about the inalienable right to self-protection, then why is an alien’s right to this any less than mine?

I can accept that someone who is in this country unlawfully, perhaps could be deprived of certain rights after due-process of law, but to me, if you want to restrict unlawful immigrants of any constitutionally guaranteed right, you better convict them first. So I would argue the option of convicting an unlawful immigrant of firearm possession ought not be able to proceed until you’ve first convicted them of being in the country illegally. You should have to establish the first fact as a matter of law because you can establish the second.

14 Responses to “Limiting Gun Rights for Illegal Immigrants”

  1. PhilaBOR says:

    I thought the constitution applied to citizens. “The right of the people…”

    • ExurbanKevin says:

      Nope, either the right for self-defense is a inherit one, or it’s not. If we say “citizens”, who do we define as a “citizen”? Also, if it is just for citizens, where does that leave other countries and their “citizens”? Either it is part of natural law, or it’s not.

      That being said, I’m ok with this. If a person is committing an illegal act by entering a state without following the laws, they should expect some of the rights and privileges to be put in jeopardy in much the same way we say convicted felons can’t own guns.

    • terraformer says:

      People != to citizens. The term “the people” has been defined by the courts to mean something specific.

      From one of our cases which is a resident legal alien case against MA who limits the possession of firearms to citizens only:

      Therefore, any lawfully admitted alien that is capable of lawfully establishing residence in the Commonwealth and elects to do so becomes part of the “national community” and “develop[s] sufficient connection with this country to be considered part of that community.” Heller, 554 U.S. at 580.

  2. Charlie Given says:

    The elements of the crime he was convicted of says that he had to be an illegal alien. Therefore he could not have been convicted of the crime without the fact that he was illegal being proved first. Thus due process was afforded.

  3. I really think the fatal flaw in all of this is that people illegally in the United States are…illegally in the United States. Arrest them, deport them. They certainly enjoy an inherent right to be armed. Just no inherent right to be in this country.

  4. K says:

    So they’re illegal enough that they can’t own a weapon, but not illegal enough to be sent home…

    Evidently I suck at logic, because I just can’t wrap my head around this one!

  5. Andy B. says:

    The constitution nowhere mentions “citizens” in any context other than qualification for holding office and qualification for voting. All other rights are inherent to all humans.

    While we are at it, we might note that the constitution does not give the federal government the power to control immigration — only naturalization. Thomas Jefferson called that out, I believe in the Kentucky Resolution. I believe James Madison did, also. It wasn’t until activist judges invented that federal power out of whole cloth at the time of the Chinese Exclusion Act that controlling immigration was even attempted, and technically entering the country in violation of federal standards wasn’t illegal until around 1919.

    • I’m quite that this is incorrect. There are immigration restrictions for communicable diseases in the latter half of the nineteenth century, used not just against Chinese, but also Europeans. You could be (and many were) sent back.

    • See Art. I, sec. 9, cl. 1. “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” Yes, this was intended to prevent Congress from banning import of slaves before 1808, but it implies that Congress has authority to regulate the “migration or importation” of persons.

      I would also point out that in the various arguments about Miln v. New York (1837) and the Passenger Cases that much of the argument against state regulation was the claim that the national government had exclusive authority to regulate immigration.

  6. Borderbeaten says:

    I can only guess that you live in an area that is not beseiged daily with crimes commited by ILLEGAL ALIENS.
    In my mind, they have two rights:

    1. To be treated humanely while in the hands of law-enforcement.

    2. To be sent from whence they (illegally) came without delay.

    Of course, this only applies to the ones who are guilty of nothing more than crapping on our sovereignty.

    Those convicted of a felony, through due process, instantly lose their lives.

  7. Andy B. says:

    Or, being a long time gun rights advocate, I could have an appreciation for what the constitution actually says or doesn’t say, as it was originally written, and as yet to be amended.

    A thing doesn’t become constitutional by merit of yielding only outcomes we support.

  8. dustydog says:

    Go directly to internet jail, do not pass go.

    Article III Section 2 – citizens have different rights in court than citizens of foreign powers.

    Article IV Section 2 -“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Not citizens of foreign states.

    14th amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ” No privileges or immunities for illegals. An illegal cannot be deprived of a gun without due process (because a gun is property), but no special illegals = citizens clause.

    • Harold says:

      Whatever this section of the 14th Amendment says—note that it’s “person” afterwords—it was judicially nullified soon after passage and in e.g. McDonald the Supremes declined to reverse that (too much prescient would have to be redone).

      You also need to compare these uses of citizen with all the ones that talk about the rights of “persons”; the fact that the Constitution uses both helps prove citizens are a subset of “the people”.

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