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Second Amendment Extended to Non-Residents by 7th Circuit

Despite the fact that the Supreme Court ruled that the Second Amendment right was a fundamental right, there is still an open question about whether or not it’s a fundamental right of personhood, like freedom of speech, or a citizenship right that can be restricted to non-citizens, like voting. Preexisting Supreme Court precedent essentially made Second Amendment rights for permanent residents a slam dunk after Heller and McDonald, and we’ve seen the courts have been favorable to that idea. For non-resident aliens, it’s a different matter. If it’s a citizenship right, then they can be barred from exercising that right, the same way they can be barred from voting.

Most of the rights protected in the Bill of Rights are fundamental rights of people. The idea of voting being a right at all was an alien concept until very recently. The 7th Circuit recently ruled that non-citizens have the right to bear arms, but that 18 U.S.C. 922(g)(5) was a permissible restriction. This makes me question whether or not someone in the country on a non-immigrant visa, but here legally, would have a reasonable chance of challenging 18 U.S.C. 922(g)(5)(B). Remember, it is technically illegal (felony illegal, in fact) to take a foreign national who is not here on an immigrant visa shooting. This is not usually enforced, but it is the law.

I would imagine an originalist analysis would have to look at the public understanding of the right at the time of ratification. The issue there is the concept of an illegal immigrant may have been foreign to the population at the time. Prior to about the late 19th century, there was virtually no federal laws controlling immigration, yet as early as 1798, Congress did pass a law that allowed for deportation of aliens that were “dangerous to the peace and safety of the United States.” Of course, it also restricted free speech and was roundly condemned by Thomas Jefferson. We know them as the Alien and Sedition Acts. It wasn’t until the 1870s and 1880s with the Page Act and Chinese Exclusion Act that Congress asserted a power to control immigration as well as¬†naturalization at the federal level. You had Congress exercise at least some level of control over immigration with the Steerage Act if 1819, but that was just a reporting requirement. Prior to the existence of the United States, many of the colonies had their own immigration laws, most of which encourage immigration from Britain and Germany, but largely excluded Catholics. I’ve read articles arguing that Congress originally had no power to legislate on immigration, which would leave it up to the states. A question is how many states did so. But I’m also not sure that just because Congress didn’t exercise that power until 1875 didn’t mean they weren’t understood to have it.

My feeling is that the founding generation probably understood non-resident immigrants to have full Second Amendment rights, but in today’s political environment that seems untenable.

8 Responses to “Second Amendment Extended to Non-Residents by 7th Circuit”

  1. Klyde says:

    A question arising from the following quote;

    “Remember, it is technically illegal (felony illegal, in fact) to take a foreign national who is not here on an immigrant visa shooting. This is not usually enforced, but it is the law.”

    How do shooting ranges, in places such as Honolulu, Las Vegas, and Orlando, have the ability to market supervised range time to international tourists? If such activity is felony illegal.
    Several of these ranges, specifically, market to tourists from firearm restricted foreign lands.
    Most of these individuals would not be on immigrant visas

    • Philbert says:

      I believe that the ATF has said that tourists from countries participating in the Visa Waiver Program are not covered by the ban, because they don’t have non-immigrant visas (or any visa for that matter).

      But I think there’s also widespread disregard of the law because it’s so rarely enforced. I guess eventually some nutcase is going to change that :-(

    • Sebastian says:

      Philbert is correct. I didn’t word that quite correctly. If you are here on a non-immigrant visa, you can’t possess firearms. If you’re a tourist, you can as long as you’re not prohibited for other reasons.

      • Sigivald says:

        And there’s an exception in 18 USC 922 for non-resident aliens “admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States”.

        Which is actually pretty broad, if you’re aware of the ban and wish to get around it; a state hunting license is usually pretty easy to get and cheap.

  2. Archer says:

    My feeling is that the founding generation probably understood non-resident immigrants to have full Second Amendment rights, but in today’s political environment that seems untenable.

    A right that goes unexercised and undefended soon atrophies into a privilege, and eventually into nothing.

    • Sebastian says:

      Just saying, first time some ISIS guy shoots up a mall with a gun he bought legally in the United States, you won’t find too many politicians or judges willing to stand up for “guns for terrorists.” Plus, the anti-immigrant sentiments on the right are at a high-water mark right now too.

  3. Matthew says:

    The ratifiers of the second amendment saw it as a restriction on the power of the federal government and not a right of the people. The states could regulate firearms as their constitutions may or may not permit. The opinion that the bill of rights protected fundamental rights of the people was not in the majority until after the fourteenth amendment was ratified and probably not a majority opinion until the early 20th century.

  4. Arnie says:

    “The idea of voting being a right at all was an alien concept until very recently.” Agreed! It’s amazing how few people, left and right, are aware of that fact.

    I cringe when I hear people clamor to get more people registered to vote, and to get out the vote, and who oppose voter ID laws because they might suppress the vote.

    Our problem today is we have far too many people voting who have no clue about the limited-government principles of the Constitution, the principles of Liberty, and the responsibilities of the electorate to hold government accountable to the limits placed on it by the Constitution. Instead, they vote only for those who promise them the most goodies stolen by taxes from other men’s labors and investments, or who vow to impose by power of government their peculiar lifestyle (whether left or right) upon the majority in violation of its free EXERCISE of conscience.

    When I watched Jay Leno’s “Streetwalking” segments and saw how ignorant the majority of interviewees were in critical issues, principles, and American history, and realized all those fools can vote, I then understood why America is so morally, politically and economically bankrupt, and why our freedoms are no longer “secured by government,” as Jefferson intoned in the Declaration of Independence, but rather threatened by it, the Second Amendment being at the top of its hit-list.

    As Jefferson also proclaimed (and is engraved on his memorial in DC):
    “God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed I tremble for my country when I reflect that God is just, that his justice cannot sleep forever.”

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