"Dreamer" Dreams of the Right to Own a Gun

Dream on, says a federal district court.

|The Volokh Conspiracy |

Kevin Ugurit Fierro-Morales is being prosecuted for possessing a short-barreled shotgun, and for possessing a firearm while "being an alien" "illegally or unlawfully in the United States" (in violation of 18 U.S.C. § 922(g)(5)(A)). But when he was arrested, he was covered by the Defered Action for Childhood Arrivals program—should that lead him to be treated as lawfully present, and as entitled to Second Amendment rights? (Set aside the separate charge short-barreled shotgun charge for now.)

No and no, a federal district court in San Diego held Tuesday. First, DACA made clear that President Obama's action didn't itself confer legal status: "[T]he provisions of DACA promising to defer removal and to authorize work did not confer lawful immigration status or create ambiguity as to the prohibitions of § 922(g)(5)(A)."

Second, the Second Amendment applies only to the responsible and law-abiding, whether just "responsible, law-abiding citizens" or also responsible, law-abiding permanent residents or even responsible, law-abiding temporary visitors. (The court doesn't decide on the rights of legal aliens.) Congress may ban "possession of firearms by an alien in the United States with no legal status," and DACA recipients don't have legal status. (I'm oversimplifying the court's Second Amendment discussion a bit, but that's the gist.)


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  1. This should put many liberals in a quandary.

    Denying a DACA recipient of his Constitutional rights = bad.

    But it’s his 2nd Amendment right = Oops.

    1. This seems easy enough. As long as he’s not going to serve in the militia, I’m not sure what he might need that gun for, constitutionally speaking.

      1. Every US citizen is a member of the unorganized militia.

        1. The law states for the militia: able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States….

          So….if Fierro-Morales declared his intention to become a citizen of the United States, then that would have covered him…right?

          I mean we have do have to follow the law.

          1. He can declare whatever he wants, but as an illegal alien he is ineligible to ever be a US citizen. So, he is not a member of the militia.

            1. I read the statute a bunch of times and I still can’t find the word “eligible” anywhere in it.

              It reads, in relevant part:

              “who are, or who have made a declaration of intention to become, citizens of the United States”

              Perhaps you should lobby Congress to add an eligibility requirement?

      2. Self defense? Target shooting? Hunting? Just hanging on the wall as a decoration?

        It’s not a right to have a gun for a specific purpose, but just to have a gun, which having, you can use for ANY lawful purpose.

        Where rights are concerned, your motive for exercising the right is irrelevant.

      3. So, Martinned, do you really need that bottle of Scotch, or a car? Cars kill as many as guns, and many more if you don’t count suicide. Alcohol kills three times as many. And neither possession of alcohol or cars are protected by the constitution.

        Or hasn’t the “you don’t need…” dead horse been beaten to death by now?

      4. Sorry, protecting the right of the people to keep and bear arms in order to guarantee a pool of people familiar with use of arms to facilitate raising militia or volunteer forces in time of emergency does not mean the only need for arms is militia service, nor does it mean that all other uses of arms are verboten.

        SCOTUS in DC v Heller 2008 Held:
        The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

        My home state constitution Article I (declaration of rights) Section 26 (right of the citizen to keep and bear arms) explicitly protects the citizen’s right to arms for self-defense (individual) and military preparedness training (militia), and reserves to the legislature the power to regulate arms in public with a view to prevent crime. Court rulings, attorney general opinions, and statements of legislative intent also recognize protection of all traditionally lawful purposes to own and use arms including hunting, protection of livestock from predators, recreational shooting, collection of keepsakes and curios.

        Criminal use of arms is not lawful. Possession of arms by criminals is not lawful either.

    2. This should put many liberals in a quandary.

      And an equal, if not greater, number of conservatives as well.

      1. Not really. He’s violating 18 USG 922 (g) (5), as a person possessing a firearm…

        “who, being an alien?
        (A)is illegally or unlawfully in the United States; or
        (B)except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))”

        Most conservatives and NRA members I’ve discussed this with support enforcement of 18 USC 922.

        1. Its just a strawman.

          How many conservatives have ever though that an illegal alien had a right to have a weapon?

        2. I haven’t done a quantitative study, but people here on the VC complain about 922(g) all the time . . .

          1. Really? You must have a better memory than mine because I can recall 922(g)(5) coming up, well, never. Google fails to find any references too it, either.

            (Google did find some complaints about 922(g)(4) but they were based primarily on the lack of controls and potential for abuse through the non-judicial applications of the “mental defective” label.)

      2. an equal, if not greater, number of conservatives as well.

        No. At least not if you understand how logic works.

        Conservatives accept that the government has the authority to declare someone’s presence within the borders to be a criminal act.

        If that is acceptable then declaring pretty much any other aspect of that person’s presence to be criminal is surely permissible.

        1. Yeah, to a conservative, the law is exactly equivalent to a law that prohibited the possession of a firearm by a person who is in the process of committing a bank robbery.

    3. It doesn’t bother me at all. It’s flatly inconsistent with the rationale behind saying that the Second Amendment protects an individual right to bear arms. If we have that right, under the Second Amendment, it should extend to illegal immigrants.

      That’s the bed that conservatives have made for themselves. Time for them to lie in it.

      1. Absolutely ridiculous. We don’t believe illegals should have ANY rights, other than to prove they’re here legally during a deportation hearing.

        1. You don’t seem to grasp that denying rights to illegal aliens means denying them to citizens, as well.

          Take something like equal protection and the Fourth Amendment. If illegal aliens don’t have rights under those provisions, then you’re opening the door to ICE grabbing every Latino citizen on the street and throwing them in jail until they decide they’ve done enough to prove whether they’re “legal” or not.

          You can believe in whatever fantasy legal system you like. But if you believe in the rule of law, you have to believe that illegal aliens (or whatever you call them) have rights under that rule of law, including in particular those that the legal system expressly extends to them.


          1. No, I’m sorry, it doesn’t deny them to citizens. Yes, there are due process rights extended to illegal aliens, because without due process you could accuse a citizen of being an illegal alien, and deny them the opportunity to prove you were wrong.

            But illegal aliens have no rights TO anything in the US, only process rights revolving around how they are removed, and their treatment along the way.

            Due process isn’t a consideration here, he’s not claiming to be a legal resident alien, so the only relevant factual determination is uncontested.

            1. Important case on that point is United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), which was a SCOTUS decision that determined that Fourth Amendment protections do not apply to nonresident aliens in a foreign country.

            2. But illegal aliens have no rights TO anything in the US, only process rights revolving around how they are removed, and their treatment along the way.

              Wah! I don’t like the real law, so I make my own up!

          2. “You don’t seem to grasp that denying rights to illegal aliens means denying them to citizens, as well.”

            Why should we “grasp” an obvious untruth?

            1. Why should I bother responding to an obvious moron?

              1. Because the “obvious moron” made you look like a fool just now, and you don’t want to remain in the state of humiliation.

                But you can’t successfully respond to his comment, so you won’t

          3. You don’t seem to grasp that denying rights to illegal aliens means denying them to citizens, as well

            Magnificent circular reasoning there.

        2. Are you implying that an illegal alien facing criminal charges (unrelated to illegal entry) can be convicted without due process, can be compelled to incriminate himself in that proceeding, does not have the right to confront witnesses or call his own and can be punished in violation of the 8th amendment?

          I mean, you always spew ridiculous shit, but this last sentence literally implies that an illegal alien that is convicted of DUI can be drawn and quartered. Every time it reaches new heights.

      2. There’s only about a million judicial opinions now that repeatedly say the 2nd Amendment right only extends to “law-abiding citizens”. Even if you can argue around the citizen aspect, you run into a big problem with the law-abiding part.

        1. The limitation you’re citing can’t be found in the Second Amendment’s text, can it?

          It isn’t reconcilable with the underlying logic of the opinions extending the right to bear arms as an individual right, is it?

          Didn’t think so.

          1. I’m not arguing with you about what the law SHOULD be, I’m telling you what the law IS as stated by the Supreme Court and lower appellate courts.

          2. The limitation you’re citing can’t be found in the Second Amendment’s text, can it?

            No; it can be found in the fifth amendment’s text.

    4. Congress repealed a rule that would have registered thousands of Social Security recipients with mental disabilities, who have others manage their benefits, into the National Instant Criminal Background Check System to prevent them from owning firearms. The ACLU supported this as a matter of equal protection.

      Whatever the 2A protects, liberals can easily hold that it should be applied equally so that status should not unequally deny certain people over others rights unfairly.

  2. The 1934 prohibitions on short barreled rifles and shotguns is supremely stupid, but I am enjoying watching a member of a favored leftist group get ensnared by it. Maybe that would cause a real examination of the NFA and some of its moronic prohibitions on suppressors and machine guns.

    1. The way the law was originally written, it made some sense: they banned handguns, and then banned SBR/SBS so you couldn’t make your own.

      With the handgun ban removed (before the law passed), SBR/SBS ban don’t make sense.

      1. The regulation of machine guns might make sense, but certain things do not:

        1) Only allowing pre-1986 machine guns
        2) Requiring sign off from a local LEO, who has no legal obligation to do so
        3) the prohibition on moving them across state lines
        4) the $200 tax stamp.

        1. It’s from an era from before the “switch in time that saved 9”, which came just after FDR court packing scheme.

          After FDR’s browbeating of the Court, SCOTUS upheld all the New Deal legislation with an expansive reading of the Commerce Clause. It wasn’t until 1995, with Lopez, another gun case of all things, that the Court said they were going to take federalism seriously again.

          Following the passage of the machine gun ban in 1986, Wayne LaPierre, then an NRA lobbyist (and executive vice president and CEO since 1991) stated, “Repealing the machine gun amendment…will be a high priority,” saying that the NRA would “take all necessary steps to educate the public on the sporting uses and legal ownership of automatic firearms” (Sugarmann, 2006). The NRA later shelved the campaign to repeal the machine gun ban due to lack of congressional support.

        2. Actually, given the way it happened it makes sense.

          4) The $200 tax stamp was due to the NFA being enacted at a time when Congress still knew they didn’t have the authority to ban anything. So, as a workaround, they levied a ruinously large tax, instead. (The Supreme court had already ok’d that tactic in a case relating to the Harrison drug act.)

          At the time a machine gun cost about $25, so a $200 tax was basically a prohibition on anybody but the extremely wealthy owning them.

          3) Again, they knew they couldn’t ban stuff, but they had the power to regulate interstate commerce, and were willing to abuse it.

          2) Again, backdoor ban, they didn’t mind if people they trusted got them, just didn’t want it to be a right.

          1) Last minute notion stuck in an otherwise pro-gun bill, they stopped accepting payment of the tax. But trying to take away guns already owned was a bridge too far at the time, so they didn’t attempt it.

          1. According to the online Inflation Calculator, $200 in 1934 is $3,755.04 today. Out of reach of the typical American who can barely scrape together $400 in an emergency. In 1934 the issue was not the cost so much, though, because the Prohibition Era gangsters could afford the $200 (it was their crimes that drove the push for the 1934 GCA). Rather, it was the finger printing that has to take place to get the tax stamp that made the 1934 act work to reduce the number of legal machine guns. No gangster wanted to get finger printed. So they just turned to illegal guns.

            Because the $200 tax stamp never kept up with inflation, the supply of legal automatic arms, though continued to rise until the 1986 “ban” on automatic guns that can legally get a stamp.
            With the supply artificially restricted, only now is it a cost issue. A Tommy Gun will run you $30,000, and nobody has legal automatic weapons except rich collectors or people who inherit one.

            Interestingly, I just learned this the other day, that in a 3rd Cir. Case (Rybar) Alitio said of the 1986 ban, that under the precedent of Lopez, that Congress didn’t have the power to regulate machine guns with like they do under the Commerce Clause.

            1. Actually, there’s a case, Rock Island Armory, which held that by refusing to accept payment of the tax, Congress had implicitly repealed the NFA. But they managed to limit the ‘damage’ to one small jurisdiction, and used selective prosecution to protect the law from further review.

              1. Thanks for sharing that, I missed that one!

              2. “But they managed to limit the ‘damage’ to one small jurisdiction, and used selective prosecution to protect the law from further review.”

                FWIW, here’s a slightly different view of that case, namely:

                “So the courts weren’t creating any loophole. They merely ruled that if the United States wishes to prosecute someone for possession or transfer a machine gun that was not lawfully registered before May 19, 1986, they had to do so under the Gun Control Act, not the National Firearms Act.”

                “Since the United States lost the Rock Island case, that’s been standard operating procedure for US Attorneys in cases involving machine guns manufactured after May 19, 1986.”

                1. I said that they’d implicitly repealed the NFA, not that there weren’t any other applicable laws.

          2. Right, that is all true. The part I find so annoying is when liberals point to the lack of crimes being committed with these as evidence that gun control works. No. A robust black market hasn’t opened up for suppressors or full-autos because they’re not that USEFUL. There are very very few crimes that you could commit where a full-auto would be more useful/destructive than a semi-auto. Same goes for suppressors, which make the guns harder to conceal and don’t reduce the sound enough to hide what you’re doing.

      2. Actually the 1934 NFA SBR/SBS federal taxation and registration requirement was kept in order to prevent circumvention of any state or local restrictions on handguns (particularly those that adopted the model Uniform Pistol Acts) by regulating the making of concealable weapons from rifles or shotguns.

        Nothing in the NFA was banned: it was a tax and register scheme because FDR’s AG Homer Cummings recognized that blanket bans were likely to be over-turned on constitutional grounds if challenged in court.

        The blatant DC and Chicago bans were overturned. Next up will be the permit, license, tax and register schemes that are so onerous as to be de facto bans.

        1. Not that I don’t believe you, because it fits in with what I already know, but do you have a source on that bit about AG Homer Cummings?

          1. The decision Brett posted above does a little legislative history analysis and includes this:

            ‘Cummings denied that machineguns could be banned, because “we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under … the power of taxation, that we can act.”‘

            There is some additional dialogue quoted after that.

            1. Thanks!

        2. That’s funny, given that the reverse is true today. People build AR “pistols,” with these stupid “arm braces” to use as stocks to circumvent the federal SBR rules.

    2. The very fact that you get giddy whenever the lives of a class if people you don’t like (namely: brown people) is made more difficult proves you need to seek professional help. And as a gun owner myself who supports reasonable gun control the first group I would support removing guns from is those who need professional help.

      1. “a class if people you don’t like (namely: brown people)”

        Plenty of white people from Europe have overstayed visa and are illegal aliens.

        None of those people should have the right to own a gun either.

        1. “Plenty of white people from Europe have overstayed visa and are illegal aliens.

          None of those people should have the right to own a gun either.”


          So. We’ll round up all the white-looking people, seize any guns they have citing the quoted points above, and then the ones that can prove they’re citizens will get them back.

          And the best part is, nobody’s Constitutional rights get violated in the process!

      2. Being a “get off my lawn” immigration type doesn’t mean you need professional help. Same goes for an “no person is illegal/no borders type.” Defining those who disagree with you as mentally insane is, let’s put it nicely, fraught with danger inherently.

        Define “reasonable” gun control. This is not meant as bait or anything, because I have heard a 100 times if I’ve heard it a million from liberals whose idea of “reasonable” gun control results in nobody having any guns but the farmer out in the country with a double-barreled shotgun.

        1. “Define ‘reasonable’ gun control.”

          I’ll take a shot at this. (puns, urgh. Stay with me.)

          Rather than describing the exact mechanism, I’ll describe the results.
          People who handle their weapons safely and responsibly get left alone… they don’t have any restrictions on their weapons.
          People who are unwilling or unable to handle their weapons safely and responsibly get restrictions that counter the degree and nature of their unwillingness or inability, up to being flatly prohibited. (Note that handling your weapon responsibly includes not letting people who shouldn’t have them, have access to them.)
          The exact details of what restrictions get applied to whom is left to the states as “laboratories of democracy”… some will be more restrictive, some will be less restrictive, as reflected by the electorate’s preferences. Don’t like your state’s choice? Vote, and if you get outvoted, vote with your feet.

          1. Does the “vote with your feet” apply to the other enumerated rights too?

            1. Sure does. The unenumerated ones, too. And the rights that just appeared by statutory fiat, like well-funded schools, libraries, and roads that don’t have potholes.

            2. I’ll confess, there, that I didn’t expect to find you on the “firearms-for-felons” side of the argument.

              1. Depends what you mean by “felons.” If you mean someone who committed an armed robbery last year, absolutely not. If you mean someone who was convicted for check fraud back in the 60s? Sure, why shouldn’t they be allowed to own a guN?

                1. So now you’re flip-flopping?

                  Well, you did claim to be an ACTUAL right winger, so I shouldn’t be surprised.

                  1. I’m not flip flopping at all. That has always been my position. I really have no idea what you’re talking about.

                    1. Flip-flopping and then denial of ever doing so…
                      What couild possibly be next… doubling down?

      3. Which gun control is “reasonable”, exactly?

        I mean, “banning people I disagree with from having guns” doesn’t sound reasonable to … anyone who isn’t sure you won’t someday disagree with them.

        (Medicalizing the opposition is not a good tactic … unless you’re a Communist or something.

        Full disclosure: I like brown people being able to come to the US and become citizens! While I support serious border controls, I also support lots and lots of green cards and immigrant visas for foreigners, most of whom are likely to be “brown people”.

        So it’s not like I feel “attacked” by your stance … except that I don’t trust your “reasonable” controls to never include me for some other reason.)

  3. We interpret constitutional rights too narrowly. Constitutional rights are human rights, and they should be applied to all people, everywhere is the world.

    1. I agree, but as a comment under a post about the 2nd amendment that view is going to have very few takers on this blog.

    2. SHOULD be, yes. But it’s not the job of the U.S. government to ensure that.

    3. Is every right in the Constitution a human right owed to all humanity all over Earth (or all sapients in the universe)?

      I mean, I can see a good argument for at least most of them being Natural Rights, which is what every tolerable “human rights” argument boils down to (and why the UN’s “human rights” aren’t, mostly).

      But … it’s not obvious that they all are, nor is there any obvious, super-clear legal argument from “it’s in the Constitution” to “it applies to all humans worldwide”, because the Constitution doesn’t have such ambitions or claims in it.

      The Constitution has some very good answers to important legal/moral/ethical/natural-rights questions … but I’m chary of saying they’re definitely universal answers, period.

      I mean, is there really a universal human right to a jury trial based on a US dollar amount? Can we say that without laughing? I can’t.

      (If the Constitution is itself universalized, does that mean the entire world’s legistlative power is limited to the legislature of the United States?

      Or if it’s just “rights”, how does that work? Do other nations not exist? Can the people of another nation that has republican government and legitimacy never decide to order the State or rights differently than the Constitution does?

      I’m … dubious.)

      1. “Is every right in the Constitution a human right owed to all humanity all over Earth (or all sapients in the universe)?”

        No, as you point out, my comment was a generalization. Everybody has the right to life, liberty, free speech, freedom of religion, etc. and the federal government shouldn’t be killing or censoring people even extraterritorially. Of course, the power to wage war and suppress insurrection may sometimes give the government the power to abrogate some of these rights, but there’s no reason to apply that differently based on citizenship or territory. One of our most brutal wars was fought against our own citizens on our own soil.

        1. “Rights” are imaginary.
          You have exactly those rights that other people are willing to extend to you, and those rights you are able to secure for yourself by force, and nothing more.
          Right to life? Try explaining that to the criminal holding you at gunpoint and demanding your money.

  4. It’s a reasonable decision. He’s not legally here in the country. He’s illegally present, and just benefiting from a government decision that removing him isn’t an urgent priority. That clearly makes him a prohibited person under the law.

    I’m not speaking to the merits of the policy, as that’s not the judge’s concern. It’s a reasonable interpretation of the law.

    1. Agree with BB…

      1. Stand by for this urgent weather advisory from hell.

    2. BTW, for any 3rd parties, Prohibited Person is the language of the 1968 Gun Control Act (Title I of the federal firearms regulations, the 1934 National Firearms Act is Title II).

      Gun Control Act Prohibited Person. Someone who is:
      _ under indictment or convicted of any crime punishable by imprisonment for over one year
      _ a fugitive from justice
      _ an unlawful user of, or addicted to, any federally controlled substance
      _ adjudicated as a mental defective or committed to any mental institution
      _ an alien illegally or unlawfully in the United States or under a nonimmigrant visa
      _ dishonorably discharged from the Armed Forces
      _ a US citizen who has renounced his citizenship
      _ subject to a restraining order against harassing, stalking, or threatening an intimate partner or their child
      _ convicted in any court of a misdemeanor crime of domestic violence

  5. The lefties don’t want Americans to have guns and certainly dont want the immigrants that they are using to have guns.

    The lefties only want immigrants to have ‘constitutional rights’ as far as getting them to vote Democrat is concerned.

    1. This continues to be an unsupported conspiracy theory. It also has little to do with the actual subject of this thread.

      1. I’d say it’s supported by the difference in the way Democrats have responded to Cuban refugees showing up illegally in the US, vs other ‘Hispanic’ illegal aliens. The Cuban ones historically being more inclined to vote Republican. (Having actual experience of socialism…)

        1. Interesting it was a Democratic administration (Clinton) that gave preferential treatment to Cuban immigrants through the “wet foot dry foot” policy. No other immigrants got expedited legal permanent resident status and eventually U.S. citizenship just for getting their feet dirty.

        2. First, there’s not so much pushing perhaps because the GOP doesn’t offer nearly so much resistance.
          Second, Cuban attitudes aren’t quite so conservative these days.
          Third, don’t mix up Communism and socialism. Even Michael Moore realizes what an miserable place Cuba is, that’s why he cited how even they have universal health care.

          1. You have to conduct a simple thought experiment to get your answer. If hispanics voted Republican, would we really have the parties taking the positions they would? Rather, Republicans would be the open borders type.

            Still, here significant evidence for the assertion that immigrants are important to Dems for their votes, The Center For American Progress (CAP) Action Fund circulated an internal memo that leaked. It said in part:

            “Dreamers may not be equally represented in every state, but Latinos are a critical part of the progressive coalition and progressive leaders have to step up and fight for them. If Democrats can’t even stand up to Trump and Republicans in defense of Dreamers? whose moral case is unassailable?they will leave a lot of progressives wondering who Democrats will fight for. At that point, Latinos may not be the only constituency within the Democratic base that becomes dispirited and disengaged. If Democrats don’t try to do everything in their power to defend Dreamers, that will jeopardize Democrats’ electoral chances in 2018 and beyond. In short, the next few weeks will tell us a lot about the Democratic Party and its long-term electoral prospects.”


            1. Counterfactual though experiments are nothing but self-reinforcement of already existing beliefs.

              And your quote discusses lots of political reasons to support the rights of immigrants and illegals in terms of currently voting Latin citizens. The fact that you have confused that fact says a lot about you.

        3. The Cuban voting dynamic is not that simple. You have the early Cuban refugees who are mostly the upper-middle class and upper class that were fleeing Cuba early in the revolution and settled in Florida, where they established a community that leaned Republican. I would be skeptical that more recent refugees from Cuba have the same level of Republican leaning.

          1. Also, the early Cuban refugees were mostly white. The current ones are much more likely to have African or Taino blood.

      2. “unsupported conspiracy theory”??? It’s common sense politics. I didn’t even think that there were people who contested this. Both political parties are constantly on the look out for groups of people that can be brought within their tent. As mad_kalak states below, if the undocumented immigrants streaming in from Central American were voting overwhelmingly Republican, I have no doubt in my mind that Republicans would be doing everything possible to give them easy entry, and the Democrats would be throwing a fit about the need for law and order and how the country’s minorities are being damaged by all the immigrants stealing their jobs.

        Man, I can’t tell if you’re living up to your name on this, or if you’re just exceedingly naive.

        1. ” if the undocumented immigrants streaming in from Central American were voting overwhelmingly Republican”

          Undocumented immigrants aren’t voting for anybody. You’re confusing undocumented immigrants, who don’t get to vote, with the legal immigrants who eventually can become citizens and then get to vote.

          So, there’s one group of American voters who think that undocumented immigrants should be treated as harshly as possible, and there’s another group of American voters who think they shouldn’t, with varying factions within each bloc.

      3. “This continues to be an unsupported conspiracy theory”

        Sure seems widespread, though.

  6. The Law Center to Prevent Gun Violence complies statistics that show that virtually all legal challenges to gun control laws have failed, post Heller & McDonald. They fail usually because of Scalia’s dicta that current gun control laws are “presumably lawful.”

    The Law Center to Prevent Gun Violence is correct, but many of these cases that fail are “Hail Mary” cases or “wildcat” such as this one, rather than strategic cases backed by the NRA and the 2nd Amend. Foundation. The track record there is much more mixed.

    1. “They fail usually because of Scalia’s dicta that current gun control laws are “presumably lawful.””

      Which just was Scalia’s way of saying, “We’re not striking down every gun law in the country with this ruling. Existing gun laws which aren’t functionally identical to D.C.’s are presumed to be lawful until further review.

      Naturally, the lower courts, which are often radically anti-gun, interpreted it instead as meaning the Court was ruling those laws constitutional, rather than just saying that they stayed in place until reviewed.

      1. Not gonna disagree. But one back and forth I’ve gotten into lately, is that after incorporation in McDonald, this guy says that strict scrutiny is required under Palko v. CT. (which I’m ignorant on) but I’m telling him that regardless of what Palko says, no standards of review were set and the circuits are all over the map.

        1. Scrutiny standards adopted and applied over the years to other constitutional rights simply don’t work well with 2nd Amendment cases. For one, the first half of the strict scrutiny test (the most stringent review) is automatically satisfied by every single gun case, because the government will always be able to argue public safety as a “compelling government interest.” The majority of courts have adopted an intermediate scrutiny standard that is a sliding scale based on the level of the burden placed on the right. In other words, the appellate courts have adopted the balancing test advocated by the dissent in Heller and specifically rejected by the Heller majority.

          1. That makes sense, thanks for the insight.

          2. I don’t know I agree. The problem isn’t that the government is allowed to assert that public safety is a compelling government interest. The problem is that they are allowed to pass gun laws with little to no evidence that such laws would further that interest in any meaningful way.

            1. ” The problem is that they are allowed to pass gun laws with little to no evidence that such laws would further that interest in any meaningful way.”

              That’s how rational basis works. You just need an argument that what you’re going to do is rationally related to the goals you’re trying to (and allowed to) accomplish. And heck, sometimes, even if you forgot to provide one, the court will supply it for you.

              That’s why deciding what level of scrutiny is appropriate is so important in Constitutional cases… if it’s strict scrutiny, the law as written is doomed. If it’s rational basis, the law as written is going to stand.

              1. Well, right. That’s why an enumerated right should never be judged based on rational basis. In any event, the courts claim to be using intermediate scrutiny, but when the “fit” between the law and the interest “should not be second guessed, as the legislatures have already weighed the evidence and deserve deference,” it’s really just rational basis under another name.

          3. Strict scrutiny is not satisfied in gun ban cases. You may argue that stopping gun violence is a compelling government interest, but taking guns from all citizens certainly is not the least restrictive means of doing so and it is not narrowly tailored.

            And many people would argue that the indiscriminate taking of guns from all citizens is *not* a compelling government interest because the 2nd amendment charges the government with protecting the right of citizens to keep and bear arms.

      2. The challenges fail because the courts are acting in bad faith. Scalia said “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Well, no sh*t. No one would ever claim that any right is unlimited. But the lower courts have taken that to mean that ANY restriction short of a full ban of every type of weapon for every class of people is Constitutional.

    2. Ahem, “The Giffords Law Center to Prevent Gun Violence (Giffords Law Center), previously known as the Legal Community Against Violence and as the Law Center to Prevent Gun Violence (LCPGV), is a national public interest law center which provides legal assistance to elected officials, government attorneys, and activists in the United States to promote gun control and to oppose gun violence.” — Wikipedia

      On my not so humble opinion, the policies promoted by the Giffords Law Center are more about promoting gun control than preventing gun violence in real life, like the Women’s Christian Temperance Union for alcohol prohibition, the crusades against Reefer Madness, seduction of the innocents by comics books, and various other crusades. And their statistics are probably crap by true believers heavily invested in their apriori assumptions.

  7. The opinion is convoluted. But as I read it, it conceded for purposes of argument that illegal aliens are covered by the second amendment and proceeded under that theory, after noting a circuit split on the issue. It then proceeded to say that illegal aliens, assuming covered, are not within the core of the 2nd amendment, and hence are covered (if at all) by intermediate rather than strict scrutiny. Finally, it used both the federal government’s interest in control of immigration, and the fact that the defendant possessed a gun in a manner illegal even if done by a citizen, to weight the decision in favor of the government.

    I think the decision leaves the door open to the possibility that a defendant who possessed a gun in a manner that would be unquestionably legal if done by a citizen might be able to mount a 2nd Amendment challenge. I think the challenge would fail, especially in light of the description Hawaii v. Trump affords Congress in immigration matters. I suspect the Suoreme Court will likely say illegal aliens aren’t part of “the people” orotected by the 2nd Amendment at all.

    But nonetheless, this particular decision did not say illegal aliens have no 2nd Amendment protection at all, and leaves the door open to the possibility that a different defendant with no charges or criminal record beyond the possession-by-an-illegal-alien charge itself might win.

    1. Discretion, not description.

  8. It’s especially clear that Congress would not intend a DACA executive “deferral” of deportation to apply to 922(g)(5), since section (B) also excludes lawfully present aliens on non-immigrant visas.

    (Whether or not this is a Truly Proper Interpretation of “the People” under the Second Amendment is a murkier question, but not one that’s especially relevant to the matter of the decision per se, since the Courts don’t see any problem with the distinction and are unlikely to start.)

    1. I don’t see that interpretation of “the people” is necessary to reach the right result here.

      A citizen who was convicted of a felony, dishonorably discharged from the military, mentally defective or fugitive from justice is clearly a person to whom the 2A covers. And yet the 2A permits that person to be denied the RKBA.

      That is to say, the 2A does not automatically go from “Is a person” to “cannot be prohibited from possessing a firearm”.

  9. Does “the people” mean the same thing in the Second and Fourth Amendments?

    1. Yes, according the Rehnquist Court in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As well as in the 1st, 9th, and 10th. Since the rights in the 1st and 4th are individual rights, that means that the right to keep and bear arms in the 2nd is also an individual right, notwithstanding the militia clause.

      1. But I’m sure the courts would apply the 4th to a serach of an illegal immigrant’s house.

  10. Does “the people” mean the same thing in the Second and Fourth Amendments?

    1. The article on the Second Amendment on Levy’s Encyclopedia of the American Constitution includes this:

      The states’ rights interpretation [of the Second Amendment] simply cannot be squared with the amendment’s words: “right of the people.” It is impossible to believe that the First Congress used “right of the people” in the First Amendment to describe an individual right … later in the Second Amendment to describe a right vested exclusively in the states. Moreover, “right of the people” is used again to refer to personal rights in the Fourth Amendment and the Ninth Amendment, and the Tenth Amendment expressly distinguishes “the people” from “the states.”

      In the original text of the American Constitution, government entities (the States, the United States, the executive, legislative and judicial branches of the state, are described as having powers and authorities (not rights) within their jurisdictions.

      My home state’s constitution RKBA circa 1870 reads thus:
      “That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.”

      The people have rights and privileges in original constitutional language, while government entities have powers and authorities. The “right of the people” cannot be construed as the “power of the state”.

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