Is the Second Amendment Limited to Citizens?

This week a federal magistrate judge in Florida concluded that illegal aliens do not have a right to arms under the Second Amendment. "That common law right was held only by citizens and those who swore allegiance to the Government," U.S. Magistrate Judge Edwin Torres writes (PDF). "It did not include everyone present on American soil." In a 1990 decision, Torres notes, the Supreme Court said "'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to 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." Likewise, in this year's decision overturning the Washington, D.C., gun ban, the Court said "the people" in the Second Amendment "unambiguously refers to all members of the political community." Since illegal aliens do not qualify as members of the political community, Torres concluded, they are not covered by the Second Amendment.

Eugene Volokh agrees with Torres' conclusion but wonders whether his reasoning also would exclude legal U.S. residents from the Second Amendment's protection. He notes that "federal law generally bars gun possession by noncitizens who are here under a nonimmigrant visa," while "some state laws go further and ban all possession by noncitizens, including by permanent residents." So does Guam, a federal domain whose law "could be challenged even without reaching the question whether the Second Amendment is incorporated against the states." Over the years, the Supreme Court has extended to legal residents almost all of the constitutional guarantees that citizens enjoy, including freedom of speech and religion, security against unreasonable searches and seizures, due process and other trial-related rights, equal protection, and just compensation for takings. If "the people" in the First and Fourth amendments includes noncitizens, is there a compelling reason to think "the people" in the Second Amendment does not?

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  • Naga Sadow||

    I'm confused. So an immigrant has no constitutional protections? Or simply constitutional protections that do not involve weapons? The second amendment is a doozy to some, I guess.

  • shecky||

    This would seem to undercut much of the philosophical defenses on the pro gun side. Though I suspect the masses on the pro gun side won't shed many tears over the ruling.

  • ||

    "That common law right was held only by ... those who swore allegiance to the Government,"

    I guess I'm out.

  • Naga Sadow||

    Cue LoneWacko to enter and babble on about how disarming the Latin Horde is patriotic.

  • Episiarch||

    Well, LoneDipshit must be happy.

  • ||

    If "the people" in the First and Fourth amendments includes non-citizens, is there a compelling reason to think "the people" in the Second Amendment does not?

    There is no reason other than the State's "Because I Said".

  • ed||

    As long as "the people" (you know which ones) don't stupidly fire their guns into the air when they get excited (weddings, soccer matches, arrival of the taco truck) I see no reason to prohibit ownership.

  • Elemenope||

    It's actually a very interesting question.

    Me, I always hazard on the side of "yes" when the question is "does person involved in [such-and-such borderline case] have [x, y, z] right?" But it' a presumption, and not an insuperable one.

    I'm also not a judge. So there's that.

  • Nigel Watt||

    The system works, guys, here's the courts to protect your freedom again...or not.

  • ||

    That's because rights are not innate. They are granted by the government.

    Makes perfect sense.

  • Naga Sadow||

    Matth,

    Just kidding right?

  • Elemenope||

    I sure hope so for matth's sake. Otherwise he will have awoken the [posting] whirlwind.

  • Nigel Watt||

    Naga, let's find out. Joe, do you believe that government grants the right to bear arms, or that it is an inherent right which some governments take away?

  • ed||

    The "government" (in this case, the Constitution) says the "right" shall not be infringed. So the right already exists. It's not a gift or favor from the government. Next question?

  • Nigel Watt||

    ed: I know you know that, I'm asking if joe and his ilk do.

  • ||

    I'm confused. So an immigrant has no constitutional protections?

    According to the Supreme Court: " 'the people' in the Second Amendment 'unambiguously refers to all members of the political community.' Since illegal aliens do not qualify as members of the political community, Torres concluded, they are not covered by the Second Amendment."

    This is hogwash. Nowhere on the Constitution is "The People" defined as the political community. It comes down, again, to a simple "whoever I say".

  • ed||

    Prediction: They will obfuscate.

  • Loupeznik||

    "No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])

  • ||

    """It's actually a very interesting question."""

    Are any Constitutional rights in play when a cop knocks on an immigrants door, or when pulled over for speeding? I would say either the bill of rights are either in play or not, you can't pick and choose.

    Should we expect rights under another country's Constitution when visiting that country? If no, then you can't bitch about Americans being held without rights on foreign soil. It seems to me all countries should extend the same rights as their citizens to foreigners.

    What rights do our olympians have in China? I would expect the same as everyone else in China.

  • ||

    ed,

    If the house liberals can argue with a straight face that "enumerate" means "tell us what color you are, how many toilets you have and how far you drive to work," then gutting the 2nd Amendment should be a snap.

  • ||

    I'm thinking I don't like this, so much.

    First off, I'm not sure I have any idea who a member of the political community is. What if I'm not registered to vote? Does that mean I do't have any 1A or 2A rights?

    Second, I'm not sure what being such a member has to do with these rights. Do I not have the same need/right to express or defend myself regardless?

    The whole thing strikes me as yet another stealth amendment to the Consitution, to try and limit Constitutional protections to citizens. I don't think the current language re "the people" can be read that way in good faith. If that's how you want the Constitution to read, then do the hard work and get an amendment ratified.

    That one, for better or worse, would probably pass easily.

  • ||

    """This is hogwash. Nowhere on the Constitution is "The People" defined as the political community. """

    It's defined in the first three words of the preamble. Now the problem is define "we".

  • ||

    According to the Bushies the Constitutional right of habeas corpus does not extend to non-citizens, so why would the 2nd Amendment?

  • ||

    """ Do I not have the same need/right to express or defend myself regardless?"""

    Radley's full of stories about what happens when you defend against the government.

  • ||

    sugarfree
    Enumerate means to count.

    As in counting how many African-Americans there are in the house, or how many people drive 30 miles a day to work, etc.

    Need I remind you that the Constitution says that such counting can be conducted "in any manner directed by Law?" But I'm betting you read the thread on this yesterday..

  • ||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.



    Notice that the freedom of speech, religion, and the press are not restricted to "the people", but the rights to assembly and petition are. It seems the founders didn't intend "the people" to include all human beings within US jurisdiction.

  • ||

    Jefferson said "no FREE man". Well, if rights aren't innate, it's hard to argue that we are free. Or better yet, you are only free if you are an American citizen since the state is granting you that freedom.

    And, yes, I was kidding - my sarcasm is too subtle for my own good sometimes.

  • ||

    Maybe my hangover is worse than I thought, but how would a non-citizen have a gun here? They probably can't bring them into the country (hello Assad, welcome to the U.S., anything to declare? Oh, a Glock?). Can they purchase guns here (I'm talking non-gun show).

  • Nigel Watt||

    Mr. Nice Guy: Many place you can buy some variety of gun at a garage sale.

  • ||

    This is hogwash. Nowhere on the Constitution is "The People" defined as the political community.

    It's not defined as "everybody" either. "People" is not just the plural of "person", it can also mean a group of persons held together by some bond. (Indeed, since the Constitution uses the term "persons" as the plural of "person", it seems likely "people" is intended to have its other meaning).

  • Dello||

    "Is the Second Amendment Limited to Citizens?"

    I be happy if it even applied to citizens...

  • ||

    MNG,

    So if I tell you to count the cars in a parking lot, you would think that means you should keep track of colors, makes, models, number of doors, license plates, etc...

  • ||

    Well, if rights aren't innate, it's hard to argue that we are free. Or better yet, you are only free if you are an American citizen since the state is granting you that freedom.

    So you think the right to a trial by jury is innate? Or better yet, in civil cases, the $20 limit above which a jury trial becomes possible flows directly from our human nature?

  • ||

    What, MNG? I was impressed. I mean, the mental locution required to covert "count any way you want" into "count anything you want" was nothing short of amazing.

  • Elemenope||

    It's defined in the first three words of the preamble.

    No, it's *mentioned* in the Preamble. I see no definition there.

    And besides, the Preamble is by its very nature prefatory; it has no legal force. It is not an active clause. It's more like a memo line.

  • Elemenope||

    Rights are not innate. Rights are those things you are willing to kill to secure, or die to secure for others.

    Other than that they are indistinct from privileges.

    Let the hate begin.

  • ||

    "What, MNG? I was impressed. I mean, the mental locution required to covert "count any way you want" into "count anything you want" was nothing short of amazing."

    Count however you want. Count by race, county by sex, etc.

    As I noted yesterday the 1790 Census, and everyone thereon did that. It hardly seemed like a stretch of a reading to our Founders, and they didn't even have the argument strengthening now common knowledge taught in every Research Methods course that the content of a survey is, well, part of the "manner" of the survey.

    "So if I tell you to count the cars in a parking lot, you would think that means you should keep track of colors, makes, models, number of doors, license plates, etc..."

    There are 5 Subaru's, 3 Fords, two red cars, six blue ones...

    Yes, that fits nicely under "count these cars however you want"

  • ||

    "And besides, the Preamble is by its very nature prefatory; it has no legal force."

    Which is why I never buy that "the General Welfare" part allows it argument.

    Some liberal I am, I guess!

  • ||

    I think the right to not be unjustly punished is innate. Trial by jury and $20 limits are mechanisms to defend that right.

  • ||

    LMNOPE
    This one gets me all the time. People throw the word "rights" around and talk about where they "come" from and I have to admit it makes me just scratch my head sometimes.

    My best understanding of what a "right" is is that it is a form often taken by a correct moral claim. When I speak of my "right" to bear arms I think it means "it would be morally wrong for you to prevent me from bearing arms."

  • ||

    El,

    You wanna start this again?

    Fine. Rights are not innate. But everyone is freer if we operate on the basis that they are. If we assume rights are innate then the onus falls on those who want to take them away to prove they are not.

    Everybody talks in metaphysical absolutes. It's not our fault we have to use everyone's else's language to make ourselves be understood.

  • Other Matt||

    Can they purchase guns here (I'm talking non-gun show).

    Yes, legal residents can I believe. Here's Virginia's take on it (note the second to the last document):


    One of the following forms of proof of citizenship or lawful residence, pursuant to §18.2-308.2 must be presented to purchase an assault firearm:

    a certified birth certificate or certificate of birth abroad issued by the US State Department,
    an un-expired US Passport,
    a U. S. citizen identification card,
    a current voter registration card,
    a current selective service registration card,
    an immigrant or registration card issued by the Immigration and Naturalization Service, and
    a certificate of citizenship or a certificate of naturalization issued by the Immigration and Naturalization Service.



    By the way, the "gun show" thing is a cannard. It's a private transaction that you're referring to, has little to do with gun shows.

  • ||

    Which is why I never buy that "the General Welfare" part allows it argument.

    Well, the one to worry about is the one in the taxing and spending clause.

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    The plain English reading of this seems to me that, this clause does not enumarate a plenary power to do whatever "to provide for . . . the general Welfare." Rather, it is a limitation on the power to tax and spend - these can be done only for the enumerated purposes ("to pay the Debts and provide for the common Defence and general Welfare of the United State").

  • Elemenope||

    It's not our fault we have to use everyone's else's language to make ourselves be understood.

    It is our fault if we never even try. ;)

    BTW, I agree with you.

  • ||

    For one thing, I believe I should have my full second amendment rights even in Mexico.

    Sad thing is, I don't even have them in California.

  • jimmy||

    The 14th Amendment, for example, protects the privileges and immunities of "citizens," and offers due process and equal protection to "persons." I had to go thru enough agony in Constitutional Law class over this distinction. Unless someone can prove otherwise, one has to assume that the framers meant exactly what they said, and drew distinctions for good reason. Thus, accepting that "people" is the plural of "person," the 2nd Amendment must apply to all persons w/in US jurisdiction. One can argue this excludes non-citizens here illegally, but not non-citizens here legally.

  • ||

    It is our fault if we never even try. ;)

    But if we equivocate and qualify everything, then it just sounds weak. It's not just pointy-headed intellectual types that want to take away our rights, it's also foam-fleck Jesus-screamers too. 99.9% can understand rights being innate, but it takes a special breed of internet tough guys like us to get that we aren't talking about transcendent truth and commenting on an non-observable objective reality. We don't want philosophy minors to be the only ones on our side.

  • kinnath||

    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.

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    'Nuff said.

  • ||

    Yes, that fits nicely under "count these cars however you want"

    Yes, it does fit nicely under that. But that's not the phrasing used in the Constitution.

    Unless someone can prove otherwise, one has to assume that the framers meant exactly what they said, and drew distinctions for good reason. Thus, accepting that "people" is the plural of "person," the 2nd Amendment must apply to all persons w/in US jurisdiction.

    If everyone is included in "the people", why does the first amendment make a point of restricting some rights to "the people", while not restricting others at all?

    Saying "they meant what they said" isn't gonna cut it here. Look up "people" in the dictionary and you'll see it has other meanings besides the plural of "person".

  • ||

    I think the right to not be unjustly punished is innate. Trial by jury and $20 limits are mechanisms to defend that right.

    So perhaps the right to bear arms is just a mechanism to defend some other right. Right?

  • kinnath||

    So perhaps the right to bear arms is just a mechanism to defend some other right. Right?

    The 2nd ammendment is the mechanism to guarentee the Right of the People to alter or to abolish it, and to institute new Government,

    I don't see where that mechanism is reserved for citizens.

  • Elemenope||

    We don't want philosophy minors to be the only ones on our side.

    Fucking well said.

    I concede the point. (For the time being.)

  • ||

    IMHO, any immigrant with papers possesses the right to bear arms and all other right guaranteed to "the people" by the constitution.

    Illegals obviously possess no rights whatsoever. Not even human ones.

  • ||

    can anyone name a foreign country which recognizes the right of visiting americans to keep and bear arms there?

    iraq doesn't count.

  • robc||

    MNG,

    Im not repeating yesterdays thread other than to say that you are still using "manner" wrong. "manner" is the means of collecting the data, not what data is to be collected.

  • Kolohe||

    On a theoretical basis, I do not have any problem with non-citizens having no rights. (On a practical basis, we should extend as many rights as possible)

    Totally agree that rights are natural and intrinsic. But rights go hand in hand with responsibilties. (insert the Starship Troopers spiel on citizenship here)

    Make citizenship easy, but to borrow something I read earlier this week, make people pick a side and stick with it - no russian passports for ossetians type of thing.

  • kinnath||

    can anyone name a foreign country which recognizes the right of visiting americans to keep and bear arms there?

    Who gives a shit what other countries do?

  • Episiarch||

    I concede the point.

    So NutraSweet wins, then. You said it dude--you can't take it back.

  • robc||

    One advantage to not being an atheist is that the source of rights is an easy question.

  • Kolohe||

    Let me extend and revise my remarks based on J sub D's 3:17.

    There are inalienable human rights that are trancendent: life, liberty, and property

    Everything else I think is just a way to defend these as Occam's toothbrush said.

  • Neu Mejican||

    What rights do our olympians have in China? I would expect the same as everyone else in China

    So, reversing that, if the next olympics takes place on US soil, will all olypians have the right to vote in the 2012 US elections?


    My best understanding of what a "right" is is that it is a form often taken by a correct moral claim. When I speak of my "right" to bear arms I think it means "it would be morally wrong for you to prevent me from bearing arms."

    Another productive way to look at rights is that they place moral obligations on others.

    Negative rights = a negative obligation on others = they are morally required to refrain from doing something.

    Positive rights = a positive obligation on others = they are morally required to do something.

    How "right to keep and bear arms" fits into this: it is a negative right that places a negative obligation on the government. The government must not infringe upon the keeping or bearing of arms by the people.

    It could be argued, however, that the 2nd also includes a positive obligation implied by the militia phrase.

    Something like: "If you keep and bear arms you will use it to help maintain the security of the free State by participating in the well-regulated militia."

  • Other Matt||

    Actually, if you read the decision, he's basically saying "Citizen or legal alien", meaning they are a part of the "political community". The illegals apparantly are the tick infestation on that political body, in his view.

    Honestly, this seems to be much about nothing.

  • ||

    I concede the point. (For the time being.)

    In the Outer Dark, Elemenope waits...


    Anyway... do we have any philosophy minors (or majors) other than me? Go on. You can out yourself. This a safe place where shameful secrets can be shared.

  • Neu Mejican||

    robc,

    There are inalienable human rights that are trancendent: life, liberty, and property

    I like Jefferson's list better:
    Life
    Liberty
    Pursuit of Happiness.

    Property rights and other rights are just ways to ensure those.

  • ||

    can anyone name a foreign country which recognizes the right of visiting americans to keep and bear arms there?

    Lots of governments allow, even encourage foreigners to come and shoot their wild game. You may have relatives who have done so. But what other countries do is immaterial to the discussion.

  • robc||

    NM,

    Just for the sake of making everyone (read: me) happy, lets refer to the negative and positive moral thingies as "rights" and "responsibilities" respectively.

    I will only add then that government has no inherent power to enforce a moral responsibility.

  • robc||

    NM,

    Not that I mind, but that wasnt me you quoted.

  • Neu Mejican||

    Oops,

    That list is from kolohe

  • Elemenope||

    Anyway... do we have any philosophy minors (or majors) other than me? Go on. You can out yourself. This a safe place where shameful secrets can be shared.

    Me. Tempered by a side of Political Science major (which is just Philosophy-about-dummies-for-dummies), and with a sprinkling of "I really wanted to be a Chemical Engineer for a while, until I realized my freshman year that it was fucking boring".

  • ||

    The 2nd ammendment is the mechanism to guarentee the Right of the People to alter or to abolish it, and to institute new Government,

    So if the Chinese Army -- which is part of the people, under your definition -- come from China and bear arms in an attempt to abolish the US Government and institute a new Government, our government has to sit back and let them?

  • ||

    I like Jefferson's list better:
    Life
    Liberty
    Pursuit of Happiness.


    Even Jefferson wasn't perfect.

  • kinnath||

    I like Jefferson's list better:

    Jefferson's words are why I am a libertarian. I don't think there has been a better synopsis of the philosophy.

    Taking off early today. Please enjoy the rest of your conversation.

  • robc||

    Occam,

    Im pretty sure the right to abolish includes the right of the people to keep it the same, so the people can fight back against the chinese army. Since our military is made up of people....

  • Neu Mejican||

    robc,

    I will only add then that government has no inherent power to enforce a moral responsibility.

    Systems of government have no inherent powers...only those granted to them by the people that establish them. The power to enforce moral responsibility using a system of government may be something a society has inherently, but often would wisely not to use very often.

    I would say, however, that when governments enforce contract obligations, they are enforcing a moral obligations.

  • kinnath||

    So if the Chinese Army -- which is part of the people, under your definition -- come from China and bear arms in an attempt to abolish the US Government and institute a new Government, our government has to sit back and let them?

    So closes the bear trap. Answer the question yourself. You seem to be capable.

  • ||

    The right to bear arms is a specific instance of a general right, not a mechanism. It's like saying I have a right to bear polycarbonate water bottles. It's true, but probably not important enough to make specific mention of in the constitution.

    And, no, sorry SugarFree, not a philosophy minor here. Just a math minor. I honestly regret not minoring in philosophy though.

  • ||

    El,

    Philosophy for Dummies would be a great title for a PS textbook.

    Of course, Political Science isn't a science at at all. It's the art of beating baboons in a way that the marks don't show.

  • Neu Mejican||

    but often would wisely not to use very often.

    Wow, that was an impressive anacoluthon...

    It should read : "but would wisely not use very often."

  • kinnath||

    To give the toothbrush a head start:

    The declaration says that all men are created equal and the we have the right to remove and replace our form of government if it fails to serve us.

    The constitution says that we the people of the united states of america have the right to bear arms which I declare is a means to enforce our god given rights to replace government by force if need be.

    The Chinese Army is not a member of the set of people defined by "we the people of the united states of america".

    Discuss

  • Neu Mejican||

    The Chinese Army is not a member of the set of people defined by "we the people of the united states of america".

    Even if they are here as Olympians?

  • ||

    matth,

    I think more people would get philosophy degrees if they'd just be honest and call it The Bullshit Arts.

  • ||

    It bears mentioning that the Declaration of Independence has exactly zero legal authority.

    kinnath,

    You're mixing up the Preamble and the Second Amendment. But, you're saying that "the people" doesn't include everyone within US jurisdiction?

  • Elemenope||

    I think more people would get philosophy degrees if they'd just be honest and call it The Bullshit Arts.

    The joke I tell is that as a double major Philosophy/Political Science, I am now qualified to manage both a gas station AND a convenience store.

    And my vote for renaming the subject would be "the art of mind pwnage".

  • robc||

    NM,

    Governments dont (or rarely) enforce contracts. They just enforce penalties if you fail to meet the terms of the contract. Which is a subtle difference that probably doesnt make a difference to your point. But I felt the made to point out the distinction.

    only those granted to them by the people that establish them.

    And this is where things like social contract theory and stuff comes in. If I didnt grant it to them, then they dont have it, right? Dont bring up any majority bullshit either. I didnt sign the social contract. :)

  • robc||

    It bears mentioning that the Declaration of Independence has exactly zero legal authority.

    This is not true. Without it, we are colonies in revolt and have no legal standing other than whatever a set of colonies in revolt to the British empire would have.

  • robc||

    On days like today, I just declare that Might makes right is the only true political theory.

  • ||

    matth,

    I see. Your initially clear "constitutional rights = innate rights" position is getting pretty murky, with all these mechanism and instance exceptions.

  • ||

    robc,

    In the Treaty of Paris (1783), the British Empire recognized our independence, so your worries are unfounded.

  • ||

    Might doesn't make right. Might does make so, though.

  • ||

    """"The constitution says that we the people of the united states of america have the right to bear arms which I declare is a means to enforce our god given rights to replace government by force if need be.""""

    Unfortunately, that would be wrong. Weigh your statement against Congress's ability to suspend Habeas during insurrection or rebellion. So if we rebel, we can be held without a right to challange that detention, at least during the rebellion. If the government started attacking the citizens, I would say the 2nd applies. Not that the government would agree.

  • ||

    El,

    I'd call it that if most of the people I met in the program couldn't pwn their mother on the pwningest day of their life if they had an electrified pwning machine.

  • ||

    Sorry, I never said that "constitutional rights = innate rights". I did sarcastically state that the government granted rights.

    The constitution is a legal document that attempts to define how the government will defend/preserve our individual innate rights. It doesn't define the rights in the first place.

    And, it is murky.

  • robc||

    Occam,

    Declaration -> French recognizing us -> defeat the British -> Treaty of Paris

  • ||

    """The joke I tell is that as a double major Philosophy/Political Science, I am now qualified to manage both a gas station AND a convenience store."""

    That's funny. I'd say your qualified to talk a lot about non-sense.

  • ||

    "The People" is "we the people." i.e., the people who authorize the Constitution, i.e., the "political community." I have been saying this for years and it is interesting to see that jurists now seem to be agreeing, at least more openly than in the past.

    In the First Amendment, "the people" are mentioned with reference to assembly and petitioning the government to redress grievances. In the 2nd Amendment, the People are recognized as having the right to keep and hear arms. In the Fourth Amendment, the People are assured of the security of their persons, houses, papers, and effects, against unreasonable search and seizure.

    In other places in the Constitution (for instance, the 5th Amendment, or the first part of the 1st Amendment), the government is flat-out told not to behave in various ways, toward ANYONE: citizen, legal resident, illegal alien, foreign tourist, etc. But whenever "the People" are mentioned specifically, the only ones included are the people from whom the Constitution's authority flows. From the Constitutional point of view, respecting non-citizens as if they were citizens seems to be only a courtesy.

    On the other hand, the language of the Constitution provides a way for non-citizens to achieve an additional bit of protection. In the Fourth amendment, the constitution guarantees the security of "houses" against unwarranted search and seizure. But even more in the 18th century than today, "house" meant not only a building, but the family that lived there, including any servants or house-guests. Think of the favorite saying of Libertarians (and others disaffected from politics as usual): "A plague on both your houses." "House" was loosely synonymous with "clan."

    Normally, "we the people" would include only those who were eligible to vote. But what about children? Back in the youth of the nation, what about women? Servants? Slaves? I think because all of these classes of people could, for the most part, be categorized as belonging to a particular "house," the Fourth Amendment covered them, too. My thought is that foreign house-guests -- essentially, someone with a citizen sponsor -- would probably also enjoy "umbrella protection." It would not be necessary for such guests to be considered as members of "the People," in order to be protected under the constitution as if they were citizens. A non-citizen without sponsorship, however, could be in a somewhat more precarious legal situation.

    Speaking for myself, I am troubled by the use of "the People" in the Constitution. Clearly, when the framers wanted a blanket protection, they knew how to express that in clear language. So when they wrote of "the People," they were certainly talking about a subset of the human inhabitants of the United States at any particular time. Why the distinction? Why not just require the government to treat all humans equally? In the case of the 2nd Amendment, I can understand why the right to keep and bear arms might be recognized only for "the People" (i.e., the source of political authority). But what of other protections?

    One thing is very clear: The Constitution explicitly vests Congress with the responsibility of determining uniform rules for allowing foreigners to join us, "the People," through naturalization.

  • ||

    Mr. Nice Guy - seen 4473 lately? Basically, if you have a green card (i.e., are a permanent resident), you indicate that on the form, and you're good to go. Even if you are non-immigrant, you can still buy a gun if you have a hunting license. One catch is that you have to have lived in the state for 90 days you are buying a gun in before you can do it.

  • ||

    I'm confused. Are you saying that if the DoI has no legal standing, we were just rebellious colonies between 1776-83? Because, in the eyes of Britain, that's exactly what we were, and international law didn't really have criteria in place differentiating between rebellious colonies and independent states at that time.

    I initially thought you meant we would have no legal status even now, which is not true due to the Treaty of Paris giving us that status.

  • ||

    """we were just rebellious colonies between 1776-83?"""

    yeah, pretty much so, until we won. If we would have lost, the history book would describe it as another colonial rebellion the British had to squash.

  • Neu Mejican||

    Governments dont (or rarely) enforce contracts. They just enforce penalties if you fail to meet the terms of the contract. Which is a subtle difference that probably doesnt make a difference to your point.

    Clearly, it doesn't make a difference to my point.

    But I felt the made to point out the distinction.

    Nice try at beating my anacoluthon, btw.

    If I didnt grant it to them, then they dont have it, right?

    Wrong, they've got it whether you want them to or not...because it is the power of the majority that drives the power of the government.

    Dont bring up any majority bullshit either. I didnt sign the social contract. :)

    Implied consent, sorry.

    http://legal-dictionary.thefreedictionary.com/implied+consent

  • ||

    The other thing to keep in mind is the 14th Amendment, the provisions of which supersede the original Constitution and Amendments, and which guarantees to everyone, regardless of citizenship status, due process and equal protection under the law. Are the warrants required in the Fourth Amendment, for example, considered as being part of the "due process" that the 14th guarantees to all? Does the post-14th Constitution now recognize and equally protect the right of all people to assemble peacefully and petition the government for redress of grievances?

  • kinnath||

    It bears mentioning that the Declaration of Independence has exactly zero legal authority.

    True but useless information.

    The declaration says we have rights that are not subject to the government approval, that the purpose of the government is to help us secure those rights.

    "Legal Authority" is not relevant because we authorize the government the government does not authorize us.

  • ||

    kinnath,

    I wouldn't consider it useless information. The DoI's lack of legal standing means that quotes from it have exactly as much weight in this discussion as quotes from Mein Kampf...that is, they matter as much as the reader wishes them to.

  • Elemenope||

    I'd call it that if most of the people I met in the program couldn't pwn their mother on the pwningest day of their life if they had an electrified pwning machine.

    Just because you've had a pwnage class does not mean you can actually pwn.

    I don't blame the pwnage class for that deficiency. I blame those who have no aptitude to pwn who nonetheless claim to have been trained pwners.

    Take that, dictionary! [Somewhere, somehow, a language prescriptionist is bleeding out of his eyes.]

  • kinnath||

    The DoI's lack of legal standing means that quotes from it have exactly as much weight in this discussion as quotes from Mein Kampf. . .

    Dear Goodwin's toothbrush: Discussion of legal terms is useless without the philosophical framework that defines where rights come from.

    The DoI says that I have rights that no collection of men and women can take from me regardless of how they interpret a legal document like the constitution. And the DoI says that I have the rights to remove any "legal" entity fails to recognize my rights by force if necessary. There can be no meaningful discussion of the constitution if this concept is ignored.

  • Tacos mmm...||

    That common law right was held only by citizens and those who swore allegiance to the Government


    I've never sworn allegiance to any governmnent, don't plan to, and was not aware that it was a requirement of citizenship.

  • ||

    That common law right was held only by citizens and those who swore allegiance to the Government

    Tacos, I think that the use of the disjunctive there means that the right is held by both citizens and non-citizens who swore allegiance. As a natural-born citizen, you don't have to swear allegiance. I believe doing so is a requirement of becoming a citizen if you weren't born here.

  • Neu Mejican||

    I am gonna go out on a limb and guess that Tacos mmm... pledged allegiance to the flag of the United States of America at least once.

    But as it was made by a minor, I am not sure if that pledge had moral force when it made.

    ;^)

  • Elemenope||

    Discussion of legal terms is useless without the philosophical framework that defines where rights come from.

    Dood, SugarFree and I put this stupidity to bed, like, hours ago. You *don't* need to know *dick* about, metaphysically, where rights come from (if they even exist) to talk about a legal framework of practical implementation for them.

  • kinnath||

    Dood, SugarFree and I put this stupidity to bed, like, hours ago. You *don't* need to know *dick* about, metaphysically, where rights come from (if they even exist) to talk about a legal framework of practical implementation for them.

    I prefer to be called dyuude if you don't mind.

    The constitution was the second attempt by the founding fathers to implement a government to secure our unalienable rights to life, liberty, and the pursuit of happiness. While it was a vast improvement on the first attempt, it is still far from a perfect document.

    Laws banning homosexual sodomy, are a blatant infringement of our unalienable rights to life, liberty, and the pursuit of happiness. But to be honest, I can't see how the constitution actually prohibits these kinds of laws. But the supreme court is not "authorized" to rule on laws that infringe our unalienable rights to life, liberty, and the pursuit of happiness, so they twist themselves into pretzels to discover an implied right to privacy that protects homosexual sodomy.

    So in my mostly worthless opinion, a discussion of how to implement a legal framework to protect our constitutional rights cannot be totally divorced from a discussion of where our rights originate, because we need to validate correctness of the constitution as well.

  • kinnath||

    Neu Mejican, there is no social contract.

    I owe you nothing except to respect your rights to life, liberty, and the pursuit of happiness.

  • ||

    LOL, under the Bush Regime most CITIZENS no longer have rights so why should the same not apply to non citizens. No wonder the US is the laughing stalk of the world!

    JT
    www.FireMe.to/udi

  • ||

    Mr. Nice Guy, have you ever been to a gun show? Maybe the ones you've been to are run a little looser than what Ii've seen. You suggest(@ 2:07) an illegal ET could purchase a gun at a gun show, presumably because...anybody can??? I've been to a few gun shows and even bought a gun there. One of these (don't tell anyone, I embarrass easily):

    http://thehighroad.org/showthread.php?t=331117

    I had to wait three days to pick it up (at the seller's home which coincidently was 1/2 mile from mine). I also had to show a FOID card. Private sellers still have to obey the law. If there is a state (or federal, as in the past) waiting period, then you have to wait. If the state law states you must record and store the FOID card number for 10 years, then that's what you have to do, whether you are making the sale in a gun shop, garage sale, or auction. The only thing I know of that approaches being a "loop hole" is a private seller does not have to call into a database the way a gun store does, but all that does is confirm you did not suddenly become mentally insane or a felon between the time your gun card was issued and when it expires, and somehow manage to keep your card.

  • ||

    In light of the difficulty with determining who might be entitled to all of these rights, re: aliens and whatnot, I found the Wikipedia entry on the 14th amendment to be particularly interesting.

    Elk v. Wilkins = child born to Native Americans on U.S. soil = not a U.S. citizen

    United States v. Wong Kim Ark = child born to Chinese citizens on U.S. soil = U.S. citizen

    And so on.

  • Neu Mejican||

    ? kinnath | August 15, 2008, 5:21pm | #
    Neu Mejican, there is no social contract.

    I owe you nothing except to respect your rights to life, liberty, and the pursuit of happiness.


    That is a beautiful summary of the contract.
    Now that you have written down your understanding of it and accepted the terms that you "owe" to me, I will be sure to enforce the contract when you violate it.

    ;^)

  • ||

    While I understand that some find the judge's ruling offensive, I don't understand why anyone would stand up and defend the rights of a criminal. ILLEGAL immigrants have already committed a crime by virtue of their presence in the U.S. Why would anyone believe that they'd obey gun laws? So, whether the 2nd Amendment applies to them or not probably won't stop them from possessing what they want to. That said, while OUR Constitution delineates innate rights, why do we assume that it offers protection for them for anyone other than American citizens? After all, it's only the AMERICAN Constitution. If you're not a citizen, then why would you think it applies to you? If you want its protections, BECOME A LEGAL CITIZEN.

  • ||

    Neu Mejican,

    I don't see where paying taxes comes into that contract.

  • kinnah||

    I owe you nothing except to respect your rights to life, liberty, and the pursuit of happiness.

    That is a beautiful summary of the contract.

    Now that you have written down your understanding of it and accepted the terms that you "owe" to me, I will be sure to enforce the contract when you violate it.


    I can live with that.

    Smiley face not required.

  • ||

    "One advantage to not being an atheist is that the source of rights is an easy question."

    I've always thought this brings up more questions than it answers. What does it mean that our "rights" "come from" God? I think you still have to say what it means to say something is a right (I say I think because perhaps you could explain that, by supposing they "come from" God that also defines what they are, I'm "agnostic" about that point). And then when you do that I need you to tell me how they "come from" him. In the sense that He decreed or recognized them (or sort of built them into the fabric or reality)?

    I'm not trying to be smart alecy, I just have yet to have someone break that down to me in a way that made me go "oh, I see."

  • ||

    Oh, and robc, since you mention it, I can't imagine why the word "manner," when referring to the administration of a survey, would not comfortably include the questions asked on the survey as well as how it was (physically?) "carried out" (I'm not sure how one could divorce the content and nature of the questions themselves from the "carrying out" of a survey). But we've already said this stuff to each other.

  • ||

    MNG,

    You can count people without surveying them.

  • Neu Mejican||

    Occam's toothbrush | August 15, 2008, 9:25pm | #
    Neu Mejican,

    I don't see where paying taxes comes into that contract.


    They pay for the cost of protecting your life, liberty, and your happiness chasing.

  • ||

    So stealing from you is ok with your right to life liberty and pursuit of happiness.

  • ||

    The Constitution was vast improvement on what?

  • Neu Mejican||

    scineram | August 16, 2008, 10:48pm | #
    So stealing from you is ok with your right to life liberty and pursuit of happiness.


    Paying does not equal stealing...sorry.

  • kinnath||

    They pay for the cost of protecting your life, liberty, and your happiness chasing.

    Respect != Protect

  • bubba||

    This story is about "illegal" immigrants. Since it's not unreasonable/unusual to ban the possession of weapons while committing a crime, I don't have a problem with banning illegals from possessing weapons.

    And, since we presumably can set any conditions we like upon those who apply for a visa, I don't see a problem with preventing such people from owning guns.

    And, if we can deny visa-holders the right to own a weapon, we can certainly deny that right to people who didn't bother to get a visa.

    It would amuse me to see a debate between a pro-gun anti-immigrant politician versus a pro-immigrant anti-gun politician.

    What gun policy we actually choose/enact is entirely a political question, and not a Constitutional one, in my opinion.

    Don't we also ban foreign nationals from making political contributions? Isn't that an infringement of their First Amendment rights?

  • ||

    The issue is the degree to which we must respect the civil rights of someone who is in the act of committing a crime. Obviously we do not grant full rights to such people -- can you imagine a civil rights suit against a cop for denying infringing his arrestee's right to travel freely? (I can imagine the ACLU filing such a lawsuit, unfortunately.)

    Illegal alians are criminals simply by being here. What complicates the issue is when we criminalize behavior without seriously trying to stop the behavior. The status and rights of a "tolerated criminal" are murky. By outlawing-but-not-stopping the behavior of large subsets of the population, we in effect destroy the very notion of political equality.

    The solution, of course, is to enforce the laws we pass (e.g. the laws against illegal immigration), and not to pass laws we are unwilling to enforce.

  • ||

    Wow! So the Holocaust never happened. After all, the Jews were NOT citizens of Germany,they were citizens of Israel,
    and therefore had NO rights.

    What a bunch of crap!

  • ||

    Except many of the Jews were German!!! And many were from lands under German control.

    I'll make your arguement more apt, a Jew visiting Gemany was fair game for the oven being they were foreigners and had no rights. That's a bunch of crap.

    For some reason I believe most of those that are throwing a fit about rights applied to foreigners would be the first to throw a fit if an American was held without rights in China or Russia.

  • ||

    A GUN IN EVERY POCKET - Probably not what the framers of the Constitution really would intend today.

    Emotions make this an endless debate, and solutions will be hard to come by.

    http://pacificgatepost.blogspot.com/2008/08/gun-debate-intent-emotions-reason.html

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