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Ninth Circuit Upholds Federal Ban on Gun Ownership by Illegal Aliens

Other circuit courts have reached the same result, though not all have used the same reasoning.

The decision is U.S. v. Torres (handed down yesterday). The court doesn't decide whether "the people" in the Second Amendment includes illegal aliens, but does conclude that illegal aliens are at least outside "the core" of the Second Amendment right:

"[D.C. v. Heller] tells us that the core of the Second Amendment is 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'" ... [Title 18] § 922(g)(5) does not burden this core right, because the prohibition applies only to those who are present in the United States "illegally or unlawfully."

Because of this, the court evaluated the ban on gun possession by illegal aliens under only "intermediate scrutiny," rather than "strict scrutiny." In practice, intermediate scrutiny has sometimes been read as quite demanding of the government (almost as demanding as strict scrutiny), for instance as to sex discrimination or commercial speech restrictions. But in other areas, it has often ended up being much less demanding, for instance as to restrictions that incidentally burden symbolic expression, as to content-neutral speech restrictions (at least in many cases), and as to restrictions on gun possession. And here, the Ninth Circuit concluded that the law satisfied this standard, chiefly because it saw gun ownership by illegal aliens as particularly dangerous:

"[T]hose who show a willingness to defy our law are ... a group that ought not be armed when authorities seek them." If armed, unlawful aliens could pose a threat to immigration officers or other law enforcement who attempt to apprehend and remove them.

Further, "[unlawful aliens] often live 'largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.'" Therefore, "the ban on the possession of firearms by [unlawful aliens] is substantially related to the statute's general objectives because such persons are able purposefully to evade detection by law enforcement."

Finally, "the government has a[] strong interest in preventing people who already have disrespected the law (including, in addition to aliens unlawfully in the country, felons, § 922(g)(1), fugitives, § 922(g)(2), and those convicted of misdemeanor crimes of domestic violence, § 922(g)(9)) from possessing guns." Section 922(g)(5) and other concurrent additions to § 922(g) "reflect[] Congress's judgment that persons within these categories 'may not be trusted to possess a firearm without becoming a threat to society.'"

I have come to be quite skeptical of the "tiers of scrutiny" approach that courts have been using in various constitutional cases, such as strict scrutiny and intermediate scrutiny; I think those labels, and the verbal formulae used to define them, e.g., "narrowly tailored to a compelling government interest" (strict scrutiny) or "substantially related to an important government interest" (intermediate scrutiny), usually conceal more than they reveal (see, e.g., this article criticizing strict scrutiny in free speech cases. Intermediate scrutiny strikes me as especially indeterminate. But the Supreme Court has generally mandated this approach in many substantive rights case (e.g., under the First Amendment, the Equal Protection Clause, and substantive due process), so it's unsurprising that lower courts have picked it up as to the Second Amendment.

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  • John Rohan||

    This must have been a painful decision for them. On the one hand, the 9th Circuit loves illegal immigrants and were probably loathe to draw any further distinctions between them and any US citizen. On the other hand, they hate guns. Looks like their hatred of guns won the day.

    That said, I agree with the decision, however.

  • grb||

    Uh huh. But look at the other side of the coin :

    On the one hand, many commentators here lovingly drool over anything-guns, and would gladly support gun rights for space invading aliens from another galaxy, much less wife-beaters or the mentally disturbed.

    On the other hand, many of those same commentators cower in terror of the Brown Menace from illegal immigration. That's what their handlers instruct them to do, so that's what they do.

    Talk about a dilemma !!!

  • Sarcastr0||

    Whoa, I had no idea the 9th Circuit hive-mind's positions are so clear and Manichean.

  • Sebastian Cremmington||

    And for a brief moment all is right with the world—you get to side with Bull Connor/Ronald Reagan and not Malcom X/Huey P Newton. I look forward to the next gun case the Black Lives Matter element returning.

    NO JUSTICE NO PEACE!!
    FIGHT THE POWER!!

  • CJColucci||

    I'm making the popcorn now.

  • Sarcastr0||

    Wow, you weren't wrong.

  • jph12||

    Any thoughts about the, you know, content of the piece?

  • Martinned||

    Hmmm... guns for illegal aliens. There's an issue that's bound to blow some right-wing wingnut's brain.

  • a ab abc abcd abcde abcdef ahf||

    You think it won't blow the minds of left-wing wingnuts? It apparently has discombobulated your brain already.

  • Brett Bellmore||

    Not really. Every well educated right-wing wingnut knows that incorporation was really supposed to happen via the P&I clause, not due process. And only citizens are entitled to privileges and immunities. The only thing due process really entitles illegal aliens to is having all the proper procedures observed as they're kicked out of the country.

  • Bob from Ohio||

    Incorporation was not "supposed" to happen at all.

  • Brett Bellmore||

  • Alpheus W Drinkwater||

    From Magliocca's excellent book on John Bingham, I was surprised to learn that many abolitionists were making "incorporationist" type arguments long before the 14th amendment was ratified, indeed even before the Civil War.

  • Bob from Ohio||

    A statement by one senator or even a group of them is meaningless.

    And for goodness sake do not bring up Bingham.

    Congress adopted the text. The states ratified the text. No one adopted Bingham or Howard's arguments.

  • Brett Bellmore||

    Who the hell disputed it, though?

    You basically want to pretend the amendment doesn't mean what everybody who discussed it said it meant.

  • Bob from Ohio||

    Everybody?

    The amendment means what it says, not what some people said about it.

  • Brett Bellmore||

    As I've observed before, the purpose of language is to transmit meaning through time, and space, but words have no power to compel people to accept the meaning.

    If you're determined to deny the obvious, there's not really anything I can do to yank you out of that rabbit hole. You'll have to get yourself out by your own efforts.

    Go ahead and deny what it means, just expect to be mocked for doing it.

  • Bob from Ohio||

    shorter Brett: You don't agree with me. You are obviously stupid.

    No court has ever agreed that P & I is the basis for incorporation so you are just as wrong as you say I am.

  • Brett Bellmore||

    Shorter Bob from Ohio: "You agree with Senator Jacob Howard. You are obviously stupid."

    Oh, and you're wrong about that: The lower courts were incorporating via P&I before the Slaughterhouse Court put a stop to it.

  • Bob from Ohio||

    Got a court decision made in anyone's lifetime?

    If "everybody" agreed with you and Howard and Bingham, than why was Slaughterhouse not decided your way? It was 1873. Everbody on the court was around when 14A was ratified.

    I think you consider yourself a conservative. Not very conservative to articulate a doctrine that cedes massive power to the federal judiciary and makes every state action a federal question.

  • James Pollock||

    "If "everybody" agreed with you and Howard and Bingham, than why was Slaughterhouse not decided your way?"

    Oddly enough, it turns out that treating black people like people was still unpopular with some folks in 1873. Overturning something via court decision was popular then as it is now, and you only needed 5 people to agree with you... then, as now.

  • Alpheus W Drinkwater||

    But you said earlier that incorporation wasn't supposed to happen at all. Since courts have endorsed incorporation through the due process clause, you are just as wrong by that metric.

    Sorry to bring up Bingham. Interesting guy, bit of a bloviator. Since he basically wrote the amendment and shepherded it through the House, I would think his opinion on what it meant would be germane to the discussion.

  • James Pollock||

    Why all this discussion of incorporation? According to the headline, this ruling concerns a federal law. The Bill of Rights is fully incorporated into the U.S. Constitution.

  • Dilan Esper||

    The "only" thing?

    So the government can take an undocumented immigrant's property without due process? And the government doesn't have to give her a fair trial if it charges her with a crime? And the government can take her children away from her summarily and arbitrarily.

    Even under any reasonable restrictionist position, undocumented immigrants have plenty of due process rights.

  • ||

    The government should be able to do all of that. Including sending them into the loving eternal embrace of Hay-Sus!

  • Brett Bellmore||

    The 14th amendment distinguishes between privileges and immunities, which are the rights of citizens, and equal protection and due process, to which everyone is entitled.

    Equal protection means that it's as much a crime to murder an illegal alien as to murder a citizen. Due process means that everybody is entitled to proper procedure in their treatment by the government.

    But the reach of due process and equal protection are very limited compared to privileges and immunities. If you're not a citizen, you lack such rights as freedom of speech, the right to freely travel or acquire property, to work for a living, or even to be present in the country.

  • Alpheus W Drinkwater||

    This is interesting. If I understand correctly, you are saying that since the Bill of Rights has been incorporated through due process, the 9th circuit decision is wrong and 2A (as interpreted by. Heller) applies to everyone? If the incorporation had been through the P and I clause, then it would have only applied to citizens? Slaughterhouse strikes again!

  • Sebastian Cremmington||

    The 2A doesn't need incorporation—the prefatory clause is clear—all citizens must have the RKBA for a country to be free.

  • James Pollock||

    If the prefatory clause is so darn clear, why do so many people treat the amendment as if it started just after the comma?

  • Brett Bellmore||

    We treat it like we're reading the actual words of the preface. Which explain WHY the right shall not be infringed, rather than limiting the right.

  • James Pollock||

    For whom are you claiming to speak, Brett? Or was that royal "we"?

  • Sebastian Cremmington||

    The 2A is so clear that it only took a guy with a 206 IQ to explain it over 200 years after it was ratified! ;)

  • DjDiverDan||

    Except the text of the Second Amendment does not refer to "the right of CITIZENS to keep and bear arms," it refers to the "right of the PEOPLE to keep and bear arms." So, are we now contending that illegal immigrants are not people? That they are somehow subhuman? That an illegal immigrant living in crime-plagued barrios of East Los Angeles has no need to protect himself, his family, and his home from criminal elements? And no right to use arms to do so?

    This decision strikes me as just wrong. Using guns to defend oneself, one's family, one's home lies at the very core of the Second Amendment, and restricting that right to only citizens, or only legal residents, does violence to the text of the Amendment. Sure, if they are here illegally, the Federal Government can initiate removal proceedings to toss them out of the U.S. And illegal immigrants can and should be subject to the same limitations on gun ownership and possession as others - no guns for those with a violent criminal history, no guns for the insane or mentally disturbed, no guns for those guilty of domestic violence, or drug and alcohol abuse, etc., etc. But for the poor Mexican (or Honduran, or Guatemalan) slob who's only crime is climbing a fence at the border or wading across the Rio Grande, unless and until he has been deported he has exactly the same right to defend himself and his home and family - one of the "inalienable rights" of which T. Jefferson wrote - as everyone else.

  • Sebastian Cremmington||

    The prefatory clause refers to the "militia" which was the unorganized militia composed of citizens.

  • DjDiverDan||

    But the prefatory clause does not - can not - limit or restrict the scope of the right granted. So your observation is completely irrelevant.

  • LiborCon||

    "...incorporation was really supposed to happen via the P&I clause, not due process."

    Fucking Slaughter-House Cases!

  • Kazinski||

    Not really. As soon as you identify an illegal alien with, or without, a gun you deport them.

    Problem solved.

  • James Pollock||

    Except that they still have due process rights... the right to show that some aspect of U.S. law allows them to stay.

    And, in its eternal wisdom, Congress chose to cap the number of people who can hear those cases, which effectively caps the number of deportations that can be ordered to a little over 400,000. Which is fine, if the number of illegal entrants in any one year total less than 400,000.

  • Rossami||

    Most importantly, due process includes the right to compel the government to prove beyond a reasonable doubt that they are, in fact, illegal aliens in the first place. You can't go deporting people who actually are citizens just because they aren't carrying proof of citizenship. The US has no "papers, please" rule.

  • James Pollock||

    Being provably a citizen would be one of those many provisions in US law that would allow one to stay, if it applied.

  • KevinP||

    Tolerant and inclusive Euro leftie alert!

  • Sarcastr0||

    The lamest of ad hominems.

  • Martinned||

    As for the substance, I guess the alternative to the tiers of scrutiny is European-style proportionality, which essentially combines a search for a less intrusive way to achieve the same government goal with a weighing of competing interests. I'm not sure if you'd like that better.

  • GabrielSyme||

    Sounds like basically the same thing as intermediate scrutiny?

  • Ragnarredbeard||

    Good. Illegals shouldn't get any rights under the Constitution. They should be arrested and sent back home.

  • Agammamon||

    Nobody has any rights 'under the Constitution'. Your rights derive from being a person - they're human rights - and not from government.

  • James Pollock||

    Nope. You have exactly those "rights" that other people choose to give you, and nothing more.

  • mad_kalak||

    You constantly deploy that, and while it's not wrong, per se, it's not productive to conversations about rights we collectively already agree on granting, just not where the margins are. It's like pointing out that in the long run we are all dead.

    Furthermore, you might want to consider how it might be a problematic for the currently agreed upon rights to bring in groups of individuals from cultures that might not share the same concept of rights as you or I do.

  • James Pollock||

    " it's not productive to conversations about rights we collectively already agree on granting"

    There isn't any right we universally collectively agree on granting.

    Speaking of things that aren't productive, there's the "they're not like us!" panic.

  • Krayt||

    We start with the observation you are endowed with rights by your creator.

    Then we build a constitutional design and logic around it, that government only has powers that it is granted, and may not interfere with rights except as allowed.

    It's an enormous philosophical difference from vox populi vox dei or other governments that presume the a priori existence of omnipotent government, and their issue is who gets to wield that sword. Dictators for millenia but now it's our turn!

    Our system builds in the populace that freedom and rights are theirs congenitally, and are not granted to them by another person.

    This is important for the goal of long-term stability of freedom, which requires a citizenry not hanging out with one foot in the dictatorship model, ready philosophically to be rolled.

  • James Pollock||

    I'm speaking not at all of dictatorship, but rather of nature, red in tooth and claw.

    If someone points a gun at you and demands "your money or your life", you can try lecturing him about the nature of property rights, and hope to talk him around, but whether or not you have a "right to life" depends rather on that fellow's mood at the time. This is just fact. Nothing about this requires that he be wearing any sort of government-issued uniform.

  • jph12||

    "but whether or not you have a "right to life" depends rather on that fellow's mood at the time."

    No it doesn't. Whether he respects your "right to life," or chooses to violate it, has nothing to do with whether you have one. One of the reasons society would choose to punish him for killing you is because he violated your "right to life."

    "This is just fact."

    People seriously need to learn what a fact is.

  • NToJ||

    People have enforceable rights under the Constitution. You're saying in addition to that, they have unenforceable rights as humans.

  • David Welker||

    He is saying that the rights do not DERIVE from the Constitution. Although some are recognized and specifically enumerated by the Constitution, that is not where these rights came from.

  • NToJ||

    "He is saying that the rights do not DERIVE from the Constitution."

    If he's saying that, he is also wrong. There are rights that derive from the Constitution, full stop. There might also be other unenforceable rights that derive from being human. But, again, there are absolutely rights that derive from the Constitution.

    Further, several of the constitutional rights do not have anything to do with natural rights. For example, the 2A right to bear arms, as currently interpreted, does not protect a natural right inherent in humans. Humans predate guns. If there is an inherent right to defend oneself, the 2A does not secure it because it is both underinclusive (guns may be ineffective at personal protection--or maybe one day they will actually make it harder to protect oneself) and overinclusive (guns may not be necessary to protect oneself). Same with the 3A. Same with the Contracts clause. These aren't natural rights (and the former two weren't even in the original constitution). There's nothing inherent in humanity that requires jury trials in civil suits above $25.

  • ||

    Just a note, you may want to consider that the Second Amendment does not apply only to guns.

    "[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (Caetano v. Mass. 577 US __ 2016)

    That specific case applied to stun guns (which are not firearms) but the logic seems to be that, at the very least, the 2nd Amendment applies facially to knives, swords, batons, brass knuckles, tazers, weaponized lasers should they become a thing, sonic weapons, in-laws, and probably a plethora of other things I cannot be bothered to think of off the top of my head. How far the court would actually take the logic, I do not pretend to know, since it was a short per-curiam. Stun guns seem to be in, and I'd wager the patently ridiculous is out (RPGs, bazookas, nuclear weapons).

    How useful some of those are to self-defense is debatable (IE while I could conceivably use a sword, it would hardly be practical to carry one around with me as opposed to say, a nice Browning Hi-Power or Beretta 92) but I do not think it is necessarily true to call the second amendment over or under inclusive without more expansion.

  • NToJ||

    Since we're talking about natural rights, it only has to be under or over inclusive in some future world in which "instruments that constitute bearable arms" are no longer necessary or sufficient for self protection. And I can imagine that world. Whatever is true of guns can be true of knives, stun guns, batons, etc.

  • David Welker||

    Just as a historical matter, your theory and the theory historically behind the Bill of Rights are two different things. The Bill of Rights does not purport to be the source of the rights enumerated therein. I suppose your theory could make sense. You could believe that the rights have, in some sort of de facto way, derived from the Bill of Rights despite the historical theory behind the Bill of Rights. But, it is important to note that this view is contrary to what people thought they were doing in adopting a Bill of Rights.

    I think you misunderstand the theory of natural rights completely. No one ever said that natural rights would be fixed, without respect to technological development or other changes in society.

  • NToJ||

    "The Bill of Rights does not purport to be the source of the rights enumerated therein."

    So the 7th Amendment does not purport to be the source of the right to jury in civil trials above $25? The Constitution and the Bill of Rights may be an attempt to enumerate some natural rights, but that doesn't mean the Bill of Rights isn't the source of actual, enforceable rights. I can invoke the Constitution in a legally recognizable way. (I can't do the same for natural rights, which is why things like constitutions get ratified in the first place.)

    "No one ever said that natural rights would be fixed..."

    Since they derive from being human they must be fixed by that fact.

  • David Welker||

    Another problem with this reasoning. How are rights under the Constitution enforceable?

    If you say that human rights other than those enumerated in the Constitution are unenforceable (because you specifically have chosen to ignore the 9th Amendment), it is not also clear why you wouldn't say that those IN the Constitution are unenforceable. There is, after all a probability that both sorts of rights, will not, IN FACT, be enforced.

    On the other hand, there is also a probability of rights not enumerated in the Constitution being enforced. If there is such a probability, what does it mean that such rights are unenforceable even though they are enforced.

    I think you are making a normative statement, not a factual statement. You are saying that rights in the Constitution should be enforced, and rights not in the Constitution should not be enforced. Because, just as a factual matter, it is not the case that there is an objective thing "out there" called enforceability, such that it only exists with respect to rights enumerated in the Constitution. Therefore, you seem to be stating a preference, nothing more.

    What makes this preference strange though, is that it goes against the Constitution itself. If the 9th Amendment specifically asserts that the enumeration of some rights should not be used to disparage other rights, what could be more disparaging than insisting that nothing but enumerated rights should be enforced?

  • ||

    LOL. I agree with the result, but it's hilarious that the justifications could (and should) be used against illegals having basically ANY rights.

  • Agammamon||

    Those justifications could be used against *anyone* - illegal, legal, or citizen.

  • Ken Arromdee||

    "[D.C. v. Heller] tells us that the core of the Second Amendment is 'the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'" ... [Title 18] § 922(g)(5) does not burden this core right, because the prohibition applies only to those who are present in the United States "illegally or unlawfully."

    Why wouldn't it also fail on the grounds that you can't be a law-abiding, responsible, citizen if you are not a citizen?

  • ||

    Regardless, Scalia did NOT say in Heller that the 2nd Amendment was limited to this "core right," regardless of how liberal hacks have wanted to interpret it.

  • bobsut||

    Exactly this!

    The Ninth Circuit prefers to restrict the Second Amendment's protections to the narrowest interpretation they think they can get away with.

    They prefer to expand other civil rights - whether explicitly enumerated, inferred, or constructed - in the broadest penumbra they can find.

  • ||

    They don't care much about property rights or anything else. The only "civil rights" they care about are killing fetuses and buggering other dudes in the a**.

  • James Pollock||

    So they got the two you care about. Maybe they'll eventually allow buggering fetuses in the a**, and you'll be 3 for 3. For now, though, you'll just have to be patient.

  • Brett Bellmore||

    This is one of those cases where incorporating via due process instead of P&I really confuses things. Because everybody is entitled to due process, they have to invent BS excuses not to extend every right to illegal aliens.

    While only citizens are entitled to P&I, and denying illegal aliens most civil right falls out automatically from a P&I approach.

  • apedad||

    It is odd wording in the Constitution about "The Citizens of each State. . . ."

    Anybody have a current, legal definition of a Citizen of a State?

  • Dilan Esper||

    That's not true, because the equal protection clause applies to all persons. So if you incorporate using P&I, noncitizens still get the same rights under the EPC.

  • ||

    No, they don't. Not the way the EPC was envisioned by its drafters.

  • Brett Bellmore||

    No, equal protection as the authors of the amendment understood it merely involved nobody being made "outlaw", placed beyond the protection of the law.

  • James Pollock||

    You're arguing both sides.

    If equal protection involves nobody being placed beyond the protection of the law, then it means no division between groups, some of whom are entitled to protection of law, and some not.

    Pick one side, and stick with it.

  • Brett Bellmore||

    No, your mistake is thinking that "equal protection of the law" means more than it does. It literally means protection. It doesn't mean all the rights of citizenship, it just means that you're not placed beyond the protection of the law in your relations with other people.

    Just because people can't rob or assault you with impunity doesn't mean you've got the right to travel freely about, or be employed, or things like that.

  • James Pollock||

    You're STILL arguing both sides.

    The law in question is the second amendment. You're trying to argue that it applies to some people, and not to others. By the text, however, it applies to the federal government. So creating a class of people who are protected (note this verb) by the second amendment, and another people who are not protected (there it is again) by the second amendment, is inherently inequal.

    You prefer this particular inequality, but don't want to come out and say so, so you keep trying flimflammery to explain why what you want isn't REALLY inequality. It isn't working.

  • Brett Bellmore||

    " By the text, however, it applies to the federal government."

    By the text, it is a right "of the People"; "the People" is different from people in general. In constitutional terms, "the People" consists of citizens and legal resident aliens, not just everybody who happens to be on US territory. It's only people who have some sort of membership in our nation.

    But as extended to the states, P&I only applies to citizens, by the terms of the 14th amendment.

  • Bob from Ohio||

    Due process is strictly procedural, it creates no substantial rights.

  • Sebastian Cremmington||

    Wrong, illegals are not part of the unorganized militia so they aren't covered by the 2A.

  • James Pollock||

    By definition, if it's unorganized, then everyone is simultaneously a member and not-a-member.

  • Paladin_44||

    An unorganized - and leaderless - militia is a mob.

  • Krayt||

    If every citizen had the right so they could quickly assemble into an (armed) militia, it would be clear this wouldn't apply to illegal aliens because they wouldn't be part of said militia.

  • James Pollock||

    Your argument has no end. It's entirely circular.

  • Sebastian Cremmington||

    So once an army crosses into America we cannot disarm that army pursuant the 2A??

  • KevinP||

    Justice Sidney Thomas is extremely anti-gun, having pushed the 9th Circuit to, en banc, deny the Second Amendment right of carry outside the home to tens of millions of Californians.

    So no surprise here.

  • Jerry B.||

    "Further, "[unlawful aliens] often live 'largely outside the formal system of registration, employment, and identification, [and] are harder to trace and more likely to assume a false identity.'" Therefore, "the ban on the possession of firearms by [unlawful aliens] is substantially related to the statute's general objectives because such persons are able purposefully to evade detection by law enforcement.""

    So why does the 9th support laws by the states that assist illegals in purposefully evading detection by law enforcement?

  • Brett Bellmore||

    The want the illegals to be a fugitive population, available for labor, but lacking in any rights. Kind of like a more mobile version of serfdom.

  • Sebastian Cremmington||

    The revolution will not be televised brotha!

    FIGHT THE POWER!

  • Gasman||

    Sure, they can come on down to the local police station, get fingerprinted, show lots o [presumably fake] f ID, wait a few days for a background check then see if the sheriff issues the permit.

  • James Pollock||

    The headline and the body of the article don't agree with each other.

    One is about gun ownership, and the other is about gun possession.

  • Harvey Mosley||

    No surprise here. The Ninth Circuit ruled in favor of the government in a 2nd Amendment case. Their record is intact. I suppose some thought that since it was a case involving illegal aliens it might be different but the hatred of guns by the Ninth trumps all.

  • TheAmazingEmu||

    Well, I'm glad they didn't rule that illegal immigrants weren't people. Especially since "the people" language is identical language to that of the Fourth Amendment, which is a pandora's box they shouldn't want to open.

  • David Lawson||

    I think the argument that lack of citizenship is a barrier to the 2A is weak.

    First, the crime of being an illegal alien is not a felony, but a civil violation. I don't see how this rises to the level of especially dangerous.

    Second, the core of the 2A per Heller is self-defense, which is not a right granted by the Constitution. The right to life is an unalienable right that predates the Constitution and the concept of citizenship in a country that did not exist at the time.

  • ReaderY||

    "The right of the people to keep and bear arms"

    Not being a member of "the people" is a barrier to second amendment rights in the same way that not having been born is a barrier to possessing rights of persons. Being a fetus -not being a person a isn't a crime. No-one is suggesting abortion is a punishment for anything. Similarly, not being a member of the people means you don't have rights of the people. Crime has nothing to do with it.

  • ReaderY||

    Heller claimed that it was interpreting the 2nd Amendment. It wasn't claiming to be creating a brand-new substantive due process right.

  • TheAmazingEmu||

    What about Fourth Amendment rights?

  • ReaderY||

    Applying intermediate scrutiny here is a bit like saying that the fact that fetuses are outside the core set the Due Pricess Claude protects means that they get intermediate protection and government action tending to facilitate abortion is subject to intermediate scrutiny.

    You either have a right or you don't. You either have it"in the full sense of the word" or you don't at all. Applying partial rights is a complete repudiation of Roe's essential syllogism. Roe stood or fell on the proposition that establishing lack of full rights proves, necessarily implies, the complete absence of rights.

  • NToJ||

    "Applying partial rights is a complete repudiation of Roe's essential syllogism."

    Roe's syllogism was being applied to a situation where two things were asserting mutually exclusive rights. That's not the case, here.

  • Ghost on the Highway||

    Hmmm. so any illegal with a gun is committing a federal felony? How does that work in a sanctuary state.

  • dangfitz||

    What's the definition of "infringe"? In my mind, "shall not be infringed" means that you can't even nibble at the edges (fringes). I also see very few places in the Constitution where Citizens are mentioned - just enough mentions to make it clear that the framers said "Citizen" when they meant Citizen. Eugene - have you ever taken on the definition of "infringe"? Can you point us to a link? Thanks!

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