Does the Second Amendment Protect Non-Citizens?

Judge Menashi finds that Heller limited the Second Amendment to "citizens."

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The Second Amendment provides "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Framers used the word "people," and not the word "citizen." Does this right apply only to U.S. citizens, or does it apply to all people in the United States? Since Heller, the circuit courts have split on this question. In 2015, I wrote about Judge Wood's Seventh Circuit opinion, which found that aliens were protected by the Second Amendment.

On Thursday, a Second Circuit panel declined to resolve this issue in United States v. Perez. However, Judge Menashi concurred, and found that only citizens are protected by the Second Amendment. This conclusion follows from Heller, which repeatedly used the word "citizen."

In Heller, the Supreme Court spoke of "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." District of Columbia v. Heller, 554 U.S. 570, 635 (2008). As the court recognizes, illegal aliens are "[e]xcluded from participation in our democratic political institutions." Ante at 8. This is not simply a matter of whether illegal aliens fail to be "law-abiding" and "responsible." It means they are not "citizens"—"members of the political community" to whom "'the right of the people to keep and bear Arms'" belongs. Heller, 554 U.S. at 576, 580 (quoting U.S. Const.amend. II). The court strains to avoid this key point from Heller. I would instead join those circuits that have straightforwardly concluded that illegal aliens cannot invoke the right of the people to keep and bear arms under the Second Amendment. I concur only in the judgment.

Judge Menashi explains that at the time of the framing, the right to keep and bear arms extended to "members of the political community."

That the Second Amendment codifies a right belonging to members of the political community is further confirmed by examining its historical antecedents and the practice of "founding-era legislatures." Kanter, 919 F.3d at 454 (Barrett, J., dissenting). In colonial America, the right to keep and bear arms "did not extend to all New World residents." Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 140 (1996). While "[a]lien men … could speak, print, worship, enter into contracts, hold personal property in their own name, sue and be sued, and exercise sundry other civil rights," they "typically could not vote, hold public office, or serve on juries" and did not have "the right to bear arms" because these "were rights of members of the polity." Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 48 (1998).

Judge Menashi also explains that illegal aliens cannot be considered "law-abiding" and are not part of the political community:

The connection between the right to keep and bear arms and membership in the political community forecloses Perez's argument that he is "among 'the people' protected by the Second Amendment." Appellant's Br. 8. "Illegal aliens are not 'law-abiding, responsible citizens' or 'members of the political community.'" Portillo-Munoz, 643 F.3d at 440. That illegal aliens remain outside the political community is reflected throughout the Constitution and federal law. Illegal aliens may not hold federal elective office, U.S. Const. art. I, § 2, cl. 2; id. art. I § 3, cl. 3; id. art. II, § 1, cl. 5, are barred from voting in federal elections, 18 U.S.C. § 611(a), may not serve on federal juries, 28 U.S.C. § 1865(b)(1), and are subject to removal from the United States at any time, 8 U.S.C. § 1227(a). Accordingly, illegal aliens are not "members of the political community"—that is, "the people"— who may invoke the Second Amendment. Heller, 554 U.S. at 580.7 

Footnote 1 of Judge Menashi's opinion faults the majority for expurgating the word "citizen" from Heller:

The court repeatedly truncates quotations or paraphrases Heller to replace the word "citizens" with "persons." See ante at 7 (noting that the right "of law-abiding persons to protect themselves and family members in the home" is "'the central component' guaranteed by the Second Amendment"); id. at 9 ("Heller identified the right of 'law-abiding, responsible' persons to keep arms to be at the heart of the Second Amendment."); id. at 10 (identifying "the core guarantee of a law-abiding person's right to keep firearms for self-defense"); id. at 13 (considering whether "alternatives remain for persons who are law-abiding to acquire a firearm for self-defense"); id. at 13 (comparing "Perez's interest in possessing guns" with "that of a 'law-abiding, responsible' person pursuing self-defense"); id. at 16 (discussing "those who are not, as Heller put it, 'law-abiding'"). Because the court makes so much of the words "law-abiding" and "responsible" in the Heller opinion, it is striking how much work it does to ignore the word that immediately follows.

In NYS Rifle & Pistol, the Court rewrote the question presented. Among other revisions, the Court stripped the phrase "ordinary law-abiding citizen." At the time, I speculated that "Did Justice Sotomayor object to a right that would be limited to citizens?"

When the Court decides NYS Rifle & Pistol, the Court will have to think carefully about its use of the word "citizen." And we know Justice Kavanaugh does not like the word "alien." But here, an errant usage of the word "person," instead of "citizen," could extend Second Amendment rights to many aliens incarcerated on gun charges.

NEXT: A Tale Of Two OLCs

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  1. It seems to me “law abiding” might include a legally present non-citizen, but not an illegally present non-citizen.

    1. Would “law abiding” include a citizen who didn’t file their tax returns on time, i.e., if someone is behind on their tax paperwork, would they lose the right to defend their “hearth and home”? If not, then why would missing immigration paperwork suddenly preclude someone from having the right to self defense? If it is illegal to murder or rob an illegal immigrant, then why wouldn’t an illegal immigrant have a right to defend himself against such murder or robbery?

      1. If the alien is illegally here, then he doesn’t need to protect himself against murder and robbery in the US; he should go home and protect himself against murder and robbery in his home country.
        For LEGAL aliens, it might make sense to give them a statutory right to bear arms for self-protection, but that doesn’t mean that the 2A gives them that right.

        1. “but that doesn’t mean that the 2A gives them that right”

          The 2A recognizes such right because it uses the term “people” rather than citizen.

          1. bc15: I don’t have any objection to LEGAL immigrants having the right to keep and bear arms. As I said, I’d favor that right if granted by statute. Does the 2A grant that right because it refers to people rather than citizens? I don’t know. How often does the Constitution refer to “citizens”? If you can show that “people” included non-citizens at the time the Constitution was drafted and adopted, I would happily join you in advocating that legal residents have the right to bear arms.

            1. Or maybe in the 2A the term “militia” refers to the state militias and “well regulated” isn’t a throwaway term and means “well regulated”?? Holy shit—that would mean the 2A wasn’t specifically drafted to give residents in federal territories the RKBA and that it was drafted as a federalism provision to prevent another Lexington and Concord!?!

              1. I’m not sure how it matters, since the real question is, “Who is a member of “the people”?”

                Since the right is guaranteed to them, not the militia…

                1. The right is of the people, but it is for the purpose of creating a force to defend the government.

                  I see no reason why undocumented immigrants can’t be part of that force.

                  And crossing a border should be treated like any other offense and evaluated for dangerousness. If immigrants crossing the border without inspection disqualifies someone from this civil right, than I would argue that only a perfect record with no offenses at all should qualify for a right to keep and bear arms. Speeding is more dangerous to society than crossing a border without inspection.

                  1. Quite wrong: The militia exists to protect the people FROM the government.

                    1. But Heller states the 2A isn’t really concerned with that dynamic…so the 2A was drafted specifically to grant individuals in federal territories and DC with the right of self defense with a gun.

                    2. Nope. I realize the framers said that in some other documents, but the Second Amendment specifically says the militia is to protect the state. Elsewhere in the Constitution, taking up arms against the government is defined as treason.

                      The Constitution flatly rejects the fantasyland of the gun rights movement on rebelling against the government.

                    3. “The militia exists to protect the people FROM the government.”

                      That’s worth a laugh. A big one.

                  2. The right is of the people, but it is for the purpose of creating a force to defend the government.

                    That’s nonsensical. The framers were not worried about the government preventing people from defending the government.

                    1. It’s the exact text of the Second Amendment. Well regulated, militia, state. It’s all in there.

                    2. Neirporent—The Framers were very worried about tyranny AND anarchy. The 2A is a federalism provision that acts as a check on tyranny AND a check on anarchy. So the Framers wanted to perpetuate the republic which means preventing tyranny while maintaining law and order. The Militia Clauses are really about the fact the state militias were suboptimal under the AoC and so they couldn’t repel attacks by Native American which made it more likely a standing army would become necessary which made tyranny more likely.

                    3. It’s the exact text of the Second Amendment. Well regulated, militia, state. It’s all in there.

                      Yes, but what you said, and what’s not in there, is “creating a force to defend the government.”

                      The second amendment acts as a restriction on government. The notion that they wanted to restrict the government for the purpose of defending the government is illogical.

                    4. And also, trying that number of people for treason was untennable if you want to preserve the Union.

                  3. The state militias were suboptimal under the AoC and so the Constitution contains the Militia Clauses which were to rectify that problem. The federal government could call forth the state militias but the provision that would make them loyal to the states over the federal government is the fact that the states appointed officers. So we know that provision worked because in 1861 many federal military officers remained loyal to their states so obviously the state militias would have had no problem appointing militia officers that would remain loyal to the state.

                    1. You are ignoring the treason clause. Every single person who joined the Confederate Army should have been convicted of treason.

                    2. The Civil War was a constitutional crisis and the South resorted to violence when they knew they couldn’t succeed in the political sphere. From the South’s point of view Lincoln was a tyrant and sure enough the South was able to form an army in part by using arms from the several state militia stores.

                    3. “Treason doth never prosper, what’s the reason? For if treason doth prosper, none dare call it treason.”

                      It would be totally nonsensical to write into a constitution that a government that needed to be violently overthrown had to allow it; A government that needed to be violently overthrown wouldn’t CARE.

                      Instead, they relied on the idea that revolts that had public support would be successful, and revolts that didn’t, wouldn’t be.

                    4. “Every single person who joined the Confederate Army should have been convicted of treason.”

                      Nope. Because, at the point where they joined, they weren’t Americans anymore, and only Americans can commit treason against the American government.

                      The Civil war wasn’t to prevent the South from seceding, after all. They HAD seceded. It was to drag them back in.

                  4. The right is of the people, but it is for the purpose of creating a force to defend the government.

                    You are wrong, as always on this subject. The purpose of enumerating the right in 2A…not of the right itself (indeed, natural rights have no “purpose”, the just exist) was to ensure that an effective militia could be fielded to defend the nation, NOT “the government”.

              2. ‘Well regulated’ in the context of the Constitution means working well – like a mechanical clock is ‘regulated’ to have it be accurate. It does not mean congressweasles get to make rules – unless the militia is called to service.

                1. The state militias were suboptimal under the AoC…and so “well regulated” reiterates that following the minimum standards set by Congress is important for the several states not just because Congress thinks it is important, but also because if the individuals in states want to continue living free polities they should take their militia duties and responsibilities seriously which many did not do under the AoC.

                  1. A well-regulated militia operates as a military unit, and a non-well-regulated militia is a mob.

                    1. Bingo—that means the KKK and Black Panthers are the unorganized militia thanks to the imposition of proper discipline and training.

                    2. Bingo—that means the KKK and Black Panthers are the unorganized militia thanks to the imposition of proper discipline and training.

                      Every time I think I’ve already heard the dumbest arguments that can be made on this subject someone like you comes along and proves me wrong.

                  2. All this jibber jabber is non-sensical.

                    What you are telling me, is the militia is at the disposal of the federal govt as a tool of war. But, but, but, the BoR was written to protect the people from the federal government, except for the 2cnd which is needed to prevent the federal government from disarming the very force invented for the defense of the nation against all enemies (of the Nation) both foreign and domestic
                    In essence the 2cnd amendment is to prevent the federal govt from disarming its own army.

                    1. Each state had its own militia…and the Constitution provides for the federal government to organize a standing army in order to defeat existential threats. With respect to the state militias the Constitution gives the power to appoint officers to the states—so that means the state militias would always remain loyal to the states. And thanks to RE Lee remaining loyal to his state when tyranny reared it ugly gaunt horse face we know the Framers got that provision correct!

              3. The militia of the United States consists of all 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

                Seems to exclude illegals since they cannot become citizens absent the law being changed. But includes people with green cards intending to stay here, but not expatriates intending to return.

                Many people seem to forget- the militia is just about everybody under both federal and state laws. Doesn’t mean National Guard, or with states like NY, the separately organized state militias not subject to being federalized. And even with the law’s definitions, the militia is sometimes expanded. When younger people such as organized Scout troops join a search for missing persons at the request of a sheriff- they’re acting as militia. Posses can still be raised by sheriffs, though today it’s somewhat rare. Local VFDs have fire police- who are trained and authorized to direct traffic- a police function, When doing that- they are acting as the militia. The VFDs themselves? Probably not.

                The militia, when called out for law enforcement (posses) or military action- resisting invasion- are expected to show up armed. We haven’t been invaded a whole lot this century or last, but if Mexico decide to try and take Texas- the people who resist are the militia.

                1. So for the security of a free country we have a RKBA and everyone should be properly trained with arms as well….except prior to the 14A “we” and “everyone” only applied to people in federal territories and DC. Query—like Bellmore do you believe early Americans simply didn’t realize the 2A applied to people living in the states or do believe the 2A was drafted specifically for people living in federal territories and DC and thus McDonald was necessary??

                  1. False premise. Prior to incorporation under the 14th Amendment, all the rights in the BoR were restrictions on the federal government only. That doesn’t mean they protected merely those living in the federal territories and DC. It meant that the feds couldn’t violate those rights regardless of location. For context, most of the states already provided the same or similar protections under their respective state constitutions.

        2. “If the alien is illegally here, then he doesn’t need to protect himself against murder and robbery in the US; he should go home and protect himself against murder and robbery in his home country.”

          But some 2A fans actually believe that the 2A exists to protect their right to protect themselves from government agents. Our government’s agents don’t only work inside the borders.

          1. “Our government’s agents don’t only work inside the [US] borders.” So are you suggesting that when illegal immigrants to the US return to their home countries, the 2A gives them the right to arm themselves in their home countries, overriding local law prohibitions, against US government agents? I might argue that natural law gives them that right (depending on what the US government agents are doing), but not the 2A.

            1. “So are you suggesting that when illegal immigrants to the US return to their home countries, the 2A gives them the right to arm themselves in their home countries, overriding local law prohibitions, against US government agents?”

              HInt: What I’m suggesting is written down, above.

          2. Even the most hardcore 2nd Amendment absolutist doesn’t think people have the right to shoot government agents lawfully doing their job. There can be a lot of controversy about what conduct is lawful, but apprehending illegal aliens is usually lawful exercise of authority.

            But the comment about working inside/outside the borders is absurd, Mexican law prevails in Mexico, US law prevails here.

            1. Fun story. A US official shot a Mexican national, in Mexico, from a vantage point in the US. Which Mexican law applies to that? Another case:
              Seal Team Six abducted Osama bin Laden from a residence in Pakistan. For operational security reasons, they did not clear this extradition with the Pakistani government. Mr. bin Laden was sent to meet Allah during the course of this operation. Can the remainder of the bin Laden family be able to sue in a Pakistani court? A US court?

              1. As the order to murder bin Laden was expressly given by the President of the US while he was residing in the US, it would seem that a suit in a US court would be reasonable to try.
                As the Seal team violated Pakistani sovereignty in that murder, it would also seem that a suit in a Pakistani court might also fly.

              2. Well hopefully there is a US/Mexico treaty that covers such cross order incidents.

                As for Osama, don’t start nothing, there won’t be nothing. But once again, laws of war and international law apply, and US -Pakistan bilateral relations:
                ‘”Osama bin Laden’s death illustrates the resolve of the international community, including Pakistan, to fight and eliminate terrorism,” the Pakistani foreign ministry said in a statement.’

                And none of which has any relationship whatsoever to the topic at hand, gun rights of legal and illegal aliens in the United States.

              3. IIRC the border agent was tried in the US. And since he was under fire at the time, any prosecution was unwarranted.

            2. “Even the most hardcore 2nd Amendment absolutist doesn’t think people have the right to shoot government agents lawfully doing their job.”

              Tell this news to the Bundinistas who claimed the right to seize a bird sanctuary in Eastern Oregon. They put out a lot of talk about shooting the staff if they tried to come back to work.

              1. I think that would have to depend on the law in question. It’s quite possible for a law to be so awful that it would be justified to shoot anyone who tried enforcing it.

                You’d like to think you wouldn’t get that bad of laws in a democracy, but it’s somewhat naïve to think not getting them is guaranteed.

              2. Talk is rather a stretch from ‘demonstrating that they thought they had the right to shoot govt agents lawfully doing their jobs.’

        3. The 2A, like the rest of the Bill of Rights, gives no rights. It recognizes, codifies, and protects existing rights.

          “[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. ” – Heller, 554 U. S.

          The argument is about who is included in “the people”.

          1. According to Heller the 2A was specifically drafted for individuals in federal territories and DC if one believes the 2A “codified a pre-existing right”. Why is that?? Because everyone on here agrees that the 2A only applied to the federal government prior to 14A.

            So Heller asserts that the 2A means that— the RKBA cannot be infringed because it is necessary to security of a free country. So the states infringed the 2A from the beginning so the states understood the 2A didn’t apply to them. So the Framers drafted the 2A specifically for the security of the federal territories and DC while the people in the states apparently didn’t live in free polities. So the 1A declares that “Congress shall make no law”…but the 2A was crafted as creating an individual right and not merely preventing Congress from infringing said right (although obviously it prevents Congress from infringing the RKBA)…but the states were still free to infringe that right prior to the 14A. Oh, and the federal government has infringed the RKBA fairly regularly so apparently the 2A didn’t prevent the federal government from infringing the RKBA. 😉

            1. I’ve got the Heller decision open in a window. A search provides one occurrence of “territory”, which doesn’t support your claim. Of course, Heller does speak of the District of Columbia, as Heller lived there. If you want a discussion of its application to states, you need to go to McDonald.

              So, maybe a cite, to demonstrate where Heller says this?

              1. You’ve said before that you don’t think the 2A needed to be incorporated…but it was incorporated which means Scalia believed initially it only applied to people in federal territories and DC.

                1. When did *I* say that it didn’t need to be incorporated? The most I would have said is that the 14th amendment DID incorporate it, but that it should have been redundant in most states, which also had 2nd amendment analogs in their constitutions.

                  1. You’ve said numerous times that the 2A doesn’t need to be incorporated because it always applied to all Americans and not just people in federal territories and and DC.

                    1. Again, you have that backwards. It always protected all people – from infringement by the feds. Incorporation extended that protection against infringement by the states.

            2. This is nonsense on stilts. Yes, the 2A codified a pre-existing right, just as the 1A, and most of the rest of the BOR did. And no, it wasn’t drafted specifically for individuals in federal territories and DC, any more than the rest of the BOR was.

              The 2A as originally written, and as affirmed by Heller, protected people in all states, as well as in federal territories, from having the federal government infringe their pre-existing right to be armed, just as the 1A protected those same people from having the federal government infringe their right to speak, print, worship, gather, etc.

              The states, of course, remained free to infringe those rights; they could ban guns just as they could ban newspapers or Catholicism, or lock people up without charges or trial, if their own constitutions permitted it, and if their people would put up with it.

              That didn’t mean the people’s rights didn’t exist; it just meant the federal constitution wasn’t concerned with the states’ behavior, just as it wasn’t (and still isn’t) concerned with that of foreign countries. China has no right to murder its citizens, but the US constitution doesn’t forbid it, let alone prevent it, because that’s not its job. Before the 14A it wasn’t its job to forbid the states from violating people’s rights either, with very few exceptions. It forbade states from discriminating against other states’ citizens, but it didn’t forbid them from indiscriminately massacring or enslaving both their own citizens and those of other states.

          2. This claim depends quite heavily on the original Framers having written a document that provided no opportunity for the federal government to intrude on rights. Historical experience suggests otherwise.

            1. More a case of having provided no opportunity for the federal government to intrude on rights so long as the document was being followed. Once the federal government violates the Constitution to the point of claiming all sorts of undelegated powers, of course, it has no shortage of opportunities to violate rights.

              1. I only just learned this, but that’s not how rights were actually thought of at the Founding. Turns out they were more of a balancing test, as originally conceptualized. A bad idea to be sure, but not that surprising given the government the Constitution was basing itself on.

                Check out my Deep Dive post on Thursday!

    2. “Citizen” is as much an essential element as “law-abiding.” Obviously the two words mean different things. If they didn’t, it wouldn’t have been necessary to use both.

      1. Neither is in the text of the 2nd.

        1. “The people” is. If the Framers had intended all persons, they could have said so, as they did in several places elsewhere.

    3. Interesting how “people” could be only law abiding citizens under the 2A but “persons” under the 14th is assumed to include illegals. What a fascinatingly malleable document we have.

      1. Try to recall that because of the presumption of innocence, “persons” are not illegal aliens until they have had their fair trial with an opportunity to present evidence in their favor. Even that fellow in the sombrero who just hopped off the top of the “unclimbable” fence is a lawful resident until proven to be otherwise.

        1. I think even Biden Administration attorneys would be too embarrassed to claim that the criminal law presumption of innocence applied in the context of immigration law but considering the way they’ve handled everything else. who knows?

        2. The concepts of guilt and innocence don’t apply to the exclusion of aliens. Whether an alien is wanted in this country or not has no more to do with whether that alien is “innocent” or “guilty” than whether a fetus is wanted or not.

          Guilt and innovence are concepts relevent to conviction of a crime. But they are not concepts relevant to admittance or exclusion.

    4. I’m not a con law expert. But this seems straight forward to me. There’s a canon of construction (I do not remember the name) that says, essentially, that if a word is used on one place, and a different word used in another, that it should be presumed that the author intentionally foreclosed using the first word in favor of the second.

      Here, in certain places in the Constitution, the word “citizen” is used. In others, the authors chose to use “person(s).” To me, given that canon of construction, the intent was to NOT use the word citizen in the 2nd Amendment.

      That seems to be a strict textualist interpretation to me.

      1. Yes, but it’s also considered that “the people”, when used as a phrase, doesn’t just mean any random group of persons. Instead it means members of the polity.

        In the present context, both citizens AND legal resident aliens, would be considered to be members of “the people”. Illegal aliens would be excluded, though.

        1. That wasn’t even a distinction conceptualized at the time the 14th was drafted.

          Unless you go with your invaders analogy, which remains offensive and ridiculous.
          Invaders don’t come here with an intent to pick our crops and get paid a pittance for it.

          1. “Invaders don’t come here with an intent to pick our crops and get paid a pittance for it.”

            The heck they don’t, it’s called foraging, and privates don’t get paid all that much 🙂

            Joking aside, a general question for everyone: when was modern immigration control formalized, by which I mean visas, naturalization, yadda, yadda. I.e. in say Roman Gaul I don’t think you applied for a visa before visiting the next tribe over. I don’t recall ever hearing, say, people in the 1700’s worrying about visas. I’m not sure when, say James Wilson (mentioned elsewhere) changed from a Scotsman visiting America to a citizen, or if there were formal criteria for that.

            Obviously, that’s all now highly formalized. Does anyone know of a timeline of when things changed?

            1. I’m not an expert, but wiki says 1875 is the first ‘no you can’t come in’ law (as opposed to ‘wait this long for citizenship’ laws), and it kept the default of you can come in, so long as you were not Chinese.

              1891 seems to be the first for reals broad immigration strategy.

              https://en.wikipedia.org/wiki/List_of_United_States_immigration_laws

              1. Thx, duh, should of thought of wikipedia. It’s interesting that we take for granted that people can be reliably identified today – birth records, fingerprints, passports, etc, etc. But I don’t think most of that existed in the 1700’s – if someone said they were native born, or had lived here for years, it seems it would be pretty hard to dispute their assertion other than the ‘who won the 1938 world series’ kinds of quizzes.

                A little googling suggests Napoleon was the first to start ID cards, on a limited basis, but most countries didn’t follow suit until much later.

  2. Three cheers and a hip-hooray for Judge Menashi for using the correct term, “illegal alien,” and for criticizing the majority’s Orwellian avoidance of that legally accurate term.

    1. Are you equally disdainful of political correctness when a mainstream American uses the correct term for a half-educated racist (rather than a ‘traditional values’ voter)?

      When a better American correctly describes a gullible, superstitious gay-basher rather than using ‘conservative values?’

      When a modern decent American uses straightforward terms to describe a selfish, immigrant-hating xenophobe instead of enabling the bigot to hide behind a euphemism such as ‘heartland’ or ‘colorblind’?

      When a culture war winner labels a culture war casualty an obsolete, deplorable misogynist instead of using a euphemism such as ‘right of center’ or ‘Republican?’

      I am all for ditching the political correctness and calling a bigot a bigot. This infuriates right-wingers and makes some mainstream Americans uncomfortable, but appeasing the bigots is counterproductive and immoral.

      Are you still so enthusiastic about curbing political correctness with accurate speech, SKofNJ? Or do you stand with the Republicans, conservatives, and bigots?

      1. We already know you’re the only bigot posting here, so just fuck off already.

        1. buckle,
          Just mute Artie and your troubles are gone

          1. Will you complain, Don Nico, as better Americans increasingly put conservatives on mute — outvoting them, disregarding their opinions, stomping their backward and bigoted preferences into cultural irrelevance?

            America becomes less rural, less religious, less White, less backward, and less intolerant every day. The predictable affect of that progress on the Republican electoral coalition should cause guys like you to start being nicer to the culture war’s winners.

            1. The Rev is useful to have around, even if he is somewhat repetitious, for the reminder that, yes, there are people on the left who are aware that they mean to impose a totalitarian state. Not all the useful are idiots.

              1. The divide is reason, tolerance, modernity, science, progress, education, and inclusiveness against intolerance, insularity, ignorance, superstition, backwardness, dogma, and pining for illusory ‘good old days.’

                The freedom/authoritarian portions are roughly equal on each side.

                Carry on, clingers. The mainstream will let you know how far and how long.

      2. Artie. Start shopping the Caracas apartment. After 2025, all servants of the Chinese Commie Party will be rounded up. Run while you can, now.

        1. We’ll miss you. Wait, no we won’t.

      3. Immigrant-hating xenophobes are colorblind?

        1. No. They claim to be, though. It’s an increasingly popular dodge by authoritarian, bigoted conservatives. Much like “often libertarian” and “libertarianish.”

          1. Artie, you are a kowtower to the Chinese Commie Party interest in destroying our country from within.

            1. Go full Birch with Behar!

      4. I don’t care where you’re from. Irish, Italian, Polish, Chinese, whatever; if you’re here illegally you need to go. It’s not about what color you are it’s about being here illegally.

        1. Just a reminder that a lot of people who entered the country without passing through inspection at a port of entry are technically “legal” because of being refugees.

          1. How can it be more accurate when the statute uses alien, or unlawfully present alien, not undocumented?

            1. How can it be more accurate? Via the simple expedient of being more accurate.

              1. When talking about legal issues it’s avoids confusion when using the language of the statute.

                Further their is nothing in accurate about illegal alien, you just don’t like the term. It doesn’t presuppose anyone’s guilt, just like referring to felons in statutes, it’s always up to a judge to make the determination of an aliens status, as well as whether someone has the status of felon

              2. Let’s be honest. Neither you nor those you are arguing against are primarily interested in precision when deciding what term is best. These terms are chosen for their psychological impact more than any attempt to eliminate confusion.

                There’s a reason why nobody is advocating to replace the term “trespasser” with “undocumented house guest” (prior to any legal conviction for trespassing) because there’s no heated policy debate on the subject.

                And please don’t mistake my comment for an attempt to equate immigration of any kind with trespass on private property. I’m not making a statement about my own preferred immigration policy here (which, if you really want to know, is probably much closer to your own than they to that of the folks who are in any way emotionally invested in the term “illegal alien”). I’m just really talking about the mostly inauthentic debate over precision in terminology.

          2. No. Dirty Democrat cheaters are importing illegals and have them vote by the millions. They bus them from state to state to vote many times. Obama and Biden won that way.

            1. Yeah. Sure they are. And you’re made because your guys didn’t think of it first?

          3. I was married to a refugee. Trust me, she had huge trail of paperwork.

            1. The thing about refugees is that they often have to leave things behind.

              1. James, As usual you’re talking through your hat.

          4. To be technically legal refugees, they would have needed to stop in the first nation they passed through that did not pose a risk to themselves – so at the very least, they should be in Mexico. Passing through one nation for economic relief purposes obviates their claim under international law of being ‘refugees’.

            1. “To be technically legal refugees, they would have needed to stop in the first nation they passed through that did not pose a risk to themselves – so at the very least, they should be in Mexico.”

              Unless, of course, they didn’t pass through Mexico.

              1. Hint: Which part of Mexico is between Florida and Cuba?

                1. Which is why the US has the ridiculous feet wet / feet dry policy – because if a Cuban sets foot on US soil, they have a legitimate claim for refugee status.

                  All of the other immigrants, natives of lands not the US, Canada, Cuba or Mexico, cannot be lawful refugees – they passed through at least one of those other foreign countries where they were obliged under international, UN vetted treaty, to apply for refugee status. And economic advantage is not an acceptable reason for refugee status.

                  1. “All of the other immigrants, natives of lands not the US, Canada, Cuba or Mexico, cannot be lawful refugees – they passed through at least one of those other foreign countries”

                    Unless they didn’t.
                    If they came by boat, they crossed over water, which is mostly considered to be “international water”.

                    If they came by plane, they passed 30,000 feet over the surface of the planet, were they supposed to jump down? Or use their Kryptonian super-powers to fly on down to the ground below.

                    1. OK, pick a country – and how did they get to the
                      US via air? Direct flight from Mogadishu to the US? Haiti to the US?

                      They had to go through an intervening country – especially the Somalis and Haitians…. who enter by walking across the border from Mexico.

                      Well, the rules say they have to request refugee status at the FIRST CLOSEST country they enter that is safe.

                    2. For a guy with the word “flight” right in his screen name, you sure have a poor understanding of how airplanes work.

                  2. We don’t have the wet foot/dry foot policy any more. Thanks, Obama!

                    (Before Bill Clinton, we had an “any feet” policy. Bill Clinton’s administration negotiated the unconditional return of Cuban refugees who didn’t make land. Obama’s administration extended that to all new refugees from Cuba.)

              2. Cheap attempt to avoid answering the point.

                1. “Cheap attempt to avoid answering the point.”

                  The point being that some refugees didn’t set foot in, much less pass through Mexico.

                  1. A point you have yet to answer.

          5. You are wrong about “a lot of people who entered the country without passing through inspection at a port of entry are technically “legal””

            See SANCHEZ ET UX. v. MAYORKAS, a 9-0 decision written by Kagen that said once you enter the United States illegally, you can never become lawfully admitted under current law. You may not be subject to deportation due to refugee status, or other order, but you are not eligible for a green card, citizenship or other perks that maybe available to the lawfully admitted.

            1. How desperate for scoring points do you have to be to hang your hat on “can’t be lawfully removed” is totally different from “allowed to be here”?

      5. immigrant-hating xenophobe? Redundancy is a funny thing, isn’t it?

    2. “Three cheers and a hip-hooray for Judge Menashi for using the correct term, “illegal alien,” and for criticizing the majority’s Orwellian avoidance of that legally accurate term.”

      The reason for preferring “undocumented” is because it is more accurate.

      1. How can it be more accurate when the statute uses alien, or unlawfully present alien, not undocumented?

        1. Kazinski, maybe because it can take due process to determine whether an undocumented person present in the United States is in fact an “illegal alien,” or an “unlawfully present” person? Why the rush to emphasize a term which short circuits due process? That’s how you get American-born citizens unlawfully deported by racist authorities who don’t like Mexicans, for instance.

      2. James, as always, thanks for the Chinese Commie viewpoint.

        1. “James, as always, thanks for the Chinese Commie viewpoint.”

          Explain how refugees from Cuba are of any interest to Chinese people, Commies or otherwise?

            1. That magically makes you never wrong. Just mute anyone who points out when you’re full of shit.

              1. If you’re not stupid, go ahead and prove it.

  3. I’d say the 2nd amendment should probably be interpreted to extend to legal resident aliens, who can be regarded as part of ‘the people’, even if they haven’t yet gotten citizenship.

    But illegal aliens are right up there with invading armies, in terms of being excluded from claiming any of the rights due citizens.

    1. I think you’re right on that one. If legal non-citizens have recognized protections under the 4th Amendment, I don’t see why they would not qualify to own weapons under the 2nd.

    2. Agreed. If we wanted to put the whole “militia” clause into effect, the best way to do it would be to look at the wording for the “unorganized militia”.

      “The militia of the United States consists of all 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 and of female citizens of the United States who are members of the National Guard.”

    3. But illegal aliens are right up there with invading armies, in terms of being excluded from claiming any of the rights due citizens.

      Whether these are “rights due citizens” is the very question being addressed, so your argument is circular.

    4. I think Scalia’s term law abiding citizen is being way over read here. Just like Heller only decided the status of the 2nd amendment in DC, rather than go on to declare it applied to the states, Scalia was merely being exact in his language to avoid presupposing issues not yet before the court, which had not been previously decided.

      I do think legal permanent residents are covered by the 2nd, otherwise I may have committed multiple felonies by allowing my wife, who is not a citizen access to my guns. Do I need to take precautions like I would were she a felon, and keep my guns locked and inaccessible if it turns out the 2nd does not apply to permanent residents?

    5. And the 2nd amendment and gun control laws pretty much do treat lawful residents as such.

      For example, that mohammedan pilot student that injured / killed a bunch of US Citizens/Service Members when he shot up NAS Pensacola – even though he was in the US for less than a year, the law treated him like a lawful resident.

  4. Illegales are criminals. Criminals may be excluded from gun rights.

    1. The convictions for violating mask and vaccine requirements could come in quite handy, then.

      Hayseeds hardest hit.

      1. Artie, after the next election, all servants of the Chinese Commie Party like you are arrested and put in re-education camps.

        1. In Pyongyang and Caracas

          1. Artie only deserves to be deported to Caracas, not quite bad enough to be sent to Pyongyang. He could not survive their form of Commie. I would love to see Artie get mouthy in North Korea. He would be tortured, as he doing to us. He would be forced to listen to and to repeat the speeches of The Dear leader.

            1. Why would the North Koreans make him listen to Trump?

              1. I think I just figured out why Trump and Kim Jong-un have such a close friendship: they have the same bra size.

                1. That is acrude sizist remark. It is funny, but you still need to be cancelled. Sorry.

              2. That is fiendish, but it is the Laugh of the Day. Make Artie listen to Trump speeches. Kim’s speeches he may enjoy a little too much.

                1. If we wanted to torture him, we’d make him listen to YOU.

                  1. You are just another person addicted to my remarks.

                    1. Right. I need a daily dose of stupid.

      2. What law requires a vaccine?

        1. Try asking Google.

      3. So, what exactly is your rank? I can never get those something-fuhrer Waffen SS grades straight.

    2. “Illegales are criminals.”

      There’s your mistake. Criminals are criminals. Criminals become criminals by violating criminal law, and then being apprehended and convicted for those violations. “Being illegal” isn’t in the criminal code.

      1. Well, they ain’t “lawfully,” are they?

        1. Depends on which law you’re looking at at the time.

      2. Guess we better start policing for anyone calling Trump a criminal since he categorically isn’t one. Bummer.

        But I think we generally understand each other’s meaning when we assume that criminals can be criminals prior to conviction. If it turns out that the guy isn’t guilty then he was never a criminal. If the person is proven guilty then he was a criminal when he committed the act itself, not at the time of conviction.

        At least that’s how I believe most people use the word in everyday conversation. Not sure about legal definitions.

        I don’t suppose the term “alleged illegal aliens” would make anyone happy. It’s kind of clunky sounding and doesn’t really enhance clarity all that much. In the case that someone is accused of being here illegally, but it turns out that he was here totally legally and someone just made an error, then I’m sure everyone would agree that he was never an “illegal alien.”

        But if I’m understanding your precision argument correctly, isn’t “undocumented immigrant” also a misplaced allegation until the person has his day in court? It could be that the person was documented the entire time but the government made some kind of clerical error. Isn’t that the same basic argument against assuming anyone is an “illegal alien” prior to it being legally proven?

        1. “Guess we better start policing for anyone calling Trump a criminal since he categorically isn’t one. Bummer.”

          The revisionism has started already?

        2. ” If it turns out that the guy isn’t guilty then he was never a criminal. If the person is proven guilty then he was a criminal when he committed the act itself, not at the time of conviction.”

          The term, “convicted felon” would be a bit redundant otherwise, as I pointed out when this came up in a discussion of whether you could reasonably describe Hillary Clinton as a felon. Multiple law dictionaries are clear on the point that you become a criminal when you commit a crime, not when you’re convicted.

  5. “Judge Menashi also explains that illegal aliens cannot be considered “law-abiding” and are not part of the political community”

    I would extend this to the rest of the Constitution as well….

    1. Yes you would, you are also a fascist so such authoritarian bs is expected of you.

      1. You are a Democrat cheater who wants illegales to make the US a permanent one party state as California is.

        1. You’re an authoritarian nut.

        2. David,
          Quit the childish name calling

          1. And replace it with what, exactly?

    2. “I would extend this to the rest of the Constitution as well….”

      Which is a big part of why nobody asked you.

      1. You are a Democrat cheater importing illelales Democrat voters to turn our country permanent ly Commie. Most real Americans want you stopped.

        1. Heller will be relevant in the near future, Democrat cheaters.

          1. Dimwit, I’m a nonpartisan. This looks like the same problem you had a couple of months back, when you decided that I was a lawyer, and telling you several times that I am an IT professional wasn’t enough to influence your stupid opinion(s).

  6. The judge is wrong. Under the common law of England, any able-bodied male—to include both resident and non-resident alien subjects or citizens of other non-belligerent states—who was neither a diplomat nor alien enemy was expected to turn out to defend the realm if so commanded while within the borders of the kingdom. Those are “the people” the 2A protects. That the federal government by statute restricts federal milita to U.S. citizens doesn’t inform the meaning of the 2A, much as like how a penalty for the purposes of the Anti-Injunction Act is controlling with regard to whether that penalty is a tax for constitutional purposes.

    1. First off Heller is an absurd opinion and the 2A is a federalism provision so what the federal government does with respect to state militias is irrelevant.

      Now if you believe Heller that the 2A was drafted specifically to protect the RKBA of individuals in federal territories and DC…then for proper analysis one would have to research how the federal government viewed individuals in territories…so when America claimed western land and Hawaii and Alaska how were the natives treated??

      1. Your usual 2nd Amdt BS here. You can pretend that Heller didn’t happen, but it did, and is the law of the land. It was also silly to believe that 8 of 10 of the Amdts in the Bill of Rights protected individuals from the federal government, one protected states from the federal government, and one protected the federal government from its citizenry. Normal rules of statutory construction show the operative clause to be for the protection of an individual right, and the predatory militia clause merely provided a justification for the operative clause, but in no way limited it.

        1. It’s silly to believe the Framers drafted an amendment that only applied to people in the federal territories…because the Federal Marshall existed at the beginning and so a federal agent was limited by the 4th Amendment in the states and the federal courts existed and so the 5th and 6th applied to people in the states and obviously the 1st limited Congress and they make laws that apply to Americans in the states. If one believes Heller the individual right was specifically drafted to apply to people in the federal territories and DC which is absurd.

          1. “It’s silly to believe the Framers drafted an amendment that only applied to people in the federal territories”

            I’m glad we agree about that. Now, stop being silly.

            It’s true that the the 2nd amendment clearly applied to people in federal territories, in respect to their relations with the federal government. It didn’t only apply to them. However, so long as the federal government kept to its enumerated powers, it had little opportunity to violate the 2nd amendment in a state, rendering the distinction a bit moot.

            These days, when the federal government basically ignores the concept of enumerated powers, the distinction is far less moot.

            1. But the 2A is different than the 1A because it is affirms an individual right…right off the bat. So the 2A doesn’t say Congress can’t regulate arms out of existence—it declares that for the security of a free country we have the RKBA and everyone should be properly trained to arms. That just seems strange to much such a profound declaration…and then it only applied to people in the federal territories and DC prior to the 14A!?! Such a head scratcher. 😉

    2. The federal militia, in the guise of the National Guard (the organized militia under the militia act) does not exclude non-citizens…

      1. Lol, no. The term “militia” refers to the state militias that were viewed as suboptimal under the AoC…and so the Constitution included reforms to the state militias in its body and the 2A. The unorganized militia refers to groups like the KKK and Black Panthers and ISIS…so any group of Americans that organize with arms in order to foment anarchy and violence.

        1. Not at all:

          Militia Act of 1792: https://constitution.org/1-Activism/mil/mil_act_1792.htm

          10 USC 246: )The militia of the United States consists of all 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 and of female citizens of the United States who are members of the National Guard.
          (b)The classes of the militia are—
          (1)the organized militia, which consists of the National Guard and the Naval Militia; and
          (2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

          The unorganized militia is everyone who is not a federal officer (appointed or elected), member of the military or others not owing allegiance to the US

          Various USSC decisions would most likely remove the limits on women and people over 45 years of age from the relevant statute.

          1. According to Heller the term “militia” refers to “all able-bodied men”. Do you think “militia” refers to all able-bodied men or members or the state militias not in the NG or Naval Militia??

            1. I think there are two classes of militia – the organized militia of the National Guard, and the unorganized militia of pretty much everyone else, who should be able and willing to rise up to defend the nation.

              Pretty much as the law says.

              1. So we are in agreement that ISIS and KKK and Black Panthers are the unorganized militia. The Framers had big balls protecting the unorganized militia in light of most of them being wealthy landowners. So contrast the Framers with Ronald Reagan who as governor saw scary Black dudes carrying guns and promptly peed his panties and then peed on the Second Amendment by outlawing open carry.

                1. No, because ISIS and KKK and the Black Panthers are not supporting the laws of the US.

                  And seeing how certain predominantly African-American unorganized militia groups are much better at shooting their own members while ‘training’, that may be a good thing.

                  1. So a lynch mob would have been unorganized militia?? If the unorganized militia is supporting the law then they are in fact the organized militia and generally Americans want some sort of title like “volunteer firefighter” or “PTA president” if they are doing something for their community. Civic duty is important in America but it is generally organized. In fact I know someone that was in the first Peace Corps and I swear to god he said in the country he was in people didn’t have a clue how to organize something as simple as a community meeting to discuss community matters and that is what the Peace Corps was teaching.

                    1. What a stupid argument. Yes, the lynch mob members would be members of the “unorganized militia”. Just like the members of the Rotary Club and all the participants at this weekend’s Orthodontists Conference. Read the law. It’s fully quoted right above. The “unorganized militia” is everyone who’s not in the organized militia whether they are otherwise good people or bad. Being a volunteer firefighter does not suddenly make you a member of the organized militia. Neither does merely being a good person.

                    2. A lynch mob is not called to duty via Article I, section 8 of the Constitution. So, while they may be ‘part’ of the militia, they are not lawfully acting as militia.

                    3. C’mom, SC. Piling one absurd argument on the previous absurd argument does not make either credible. And you know that. It is just a sophomoric rhetorical trick

                    4. Rossami—it’s a term of art that means everyone. 😉

                    5. Don Nico—the commenters here tend to reject the notion “militia” simply refers to “everyone” because it is an inherently weak argument and they know it…and the context is pretty much everyone here is a strong supporter of the RKBA. Do you believe “militia” is a term of art that simply means “everyone”??

                    6. If, as has been suggested, “militia” means “everyone”, then the 2A is calling for a well-regulated militia being necessary to a free nation. So, a person who supports this interpretation believes that the federal government has extensive authority to impose regulation on everyone. That’s a good enough reason to reject that interpretation.

                    7. Pollock—That’s why Scalia dealt with “well regulated” by minimizing it to a throwaway term. So Scalia divorced “well regulated” from the Militia Clauses and the future regulations Congress was supposed to draft…and then Scalia divorced the term “militia” from the Militia Clauses and then gave “militia” the broadest definition he could make up—everyone.

                    8. “Pollock—That’s why Scalia dealt with”

                      Scalia was fairly transparent in abandoning any legal reasoning that didn’t produce an outcome he liked.

                    9. “A lynch mob is not called to duty via Article I, section 8 of the Constitution. ”

                      Neither is anyone else.

                2. Do you really think Reagan was scared of the Black Panthers? Or was he scared of what racists would do to him at the polls if he let black people walk around carrying guns in public?

                  1. You can watch the video on YouTube—they were at the Capitol with guns which was apparently perfectly legal in California at the time.

              2. “I think there are two classes of militia – the organized militia of the National Guard, and the unorganized militia of pretty much everyone else”

                So all those lone-gun shooters are really a militia?

                1. Heller essentially says the term “militia” is a term of art to mean “everyone”. Commenters here don’t seem satisfied with that definition so they say that it refers to the “unorganized militia” and an example is the Sons of Liberty. Unfortunately if one believes the Sons of Liberty is an example of the unorganized militia then Shaysites and KKK and Black Panthers and potentially ISIS would also be examples of the unorganized militia.

                  1. Despite your ‘essential’ interpretation of Heller, the various militia acts specify who the militia is – and clearly foreign diplomats (to pick just one category of people) are not militia, despite being able bodied and in the US legally.

            2. Sebastian – you not even close to the meaning of militia as used in 2A

              The extensive historical writing discussed the right of the people to form groups for the common defense (groups being neigborhood, areas, communities etc ) The second common theme was the individual right to keep arms.

              The militia’s discussed in 2A are the groups of people forming together for the common defense.

              1. That’s the KKK and Black Panthers. Scalia asserts “militia” is a term of art that means “everybody”.

                1. Sebastian Cremmington
                  August.1.2021 at 2:33 pm
                  Flag Comment Mute User
                  That’s the KKK and Black Panthers. Scalia asserts “militia” is a term of art that means “everybody”

                  Sebastian – your interpetation of the term “militia ” used in 2A and in Heller is flat out wrong.

                  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

                  1. to be fair, he didn’t claim the KKK was a “well regulated militia”, so complaining that he didn’t use the term they way they did in the 2A is both true and irrelevant at the same time.

                    1. Yes I did. The KKK is a “well regulated militia” according to most commenters on this site. Now Scalia doesn’t necessarily believe the KKK is unorganized militia because everyone is part of the unorganized militia but as individuals…understand??

        2. Nope. Not originally. We have been through this before. Sure, during the French and Indian wars, the British government condoned the formation of civilian militias. And some states required men in a certain age range to arm and train as a formal state sanctioned village militia. But by 1775, when the British marched to Concord and Lexington to seize arms held by the local militias, the British had replaced the colonial Governor with the commander of its forces in Boston. He was, in fact, the de jure government of Massachusetts. That means that the militias that rallied, and ultimately put his troops to fight, were operating ultra vires, and instead, were acting contrary to the law. And no discussion of the Militia Clause can be legitimate, without factoring in the roles of our founding fathers in both the pre-war militias and the 2nd Amdt. The same people led all the way through (Washington, Adam’s, Jefferson, etc). You cannot talk about the “militia” in the predatory clause of the 2nd Amdt, without taking into account that they were almost assuredly talking about the militias that had rallied and turned back the British soldiers and marines that fateful day.

          1. Bruce Hayden, history is not something you make up to make your priors look good. The standard for history is not plausible-sounding speculation. It is the historical record.

            Washington, Adams, and Jefferson were by no accurate historical description comparable members of the same club when it came to militia questions. And you left out Hamilton, Franklin, and many others.

            Hamilton, particularly, was vehemently anti-militia, but posed as a militia supporter in the Federalist, when he was trying to sell the Constitution to the South, where militias to suppress slave revolts were regarded as indispensable. Washington was, sort-of, a militia leader during the French and Indian War, and became disillusioned by the experience. Mostly, during the revolution, Washington hated the disparate militia’s that he thought it was his misfortune to command. He also feared them, as a source of disunity and potential insurrection. Washington wanted the politicians to give him a regular army to bypass the need to rely on militias. Hamilton—Washington’s executive officer during much of the war, do not forget—supported Washington in that.

            Adams vacillated. For a time, he opposed Hamilton’s advocacy of a regular standing army, and then gave in, but ultimately Hamilton’s project got abandoned anyway, for want of a compelling need.

            Jefferson, by contrast, liked the notion of insurrection, but mainly in the abstract. He advocated suppressing it in the particular—which is why he wrote about watering the tree of liberty with the blood of patriots and tyrants.

            If you want to try to use history to argue politics, you will only avoid looking foolish if you take pains to get the history right—which usually means accepting that it is complicated, and often contradictory—and thus tends to offer only weak and equivocal support for political arguments about today’s issues. But stick to the historical record anyway, for all your historical assertions, and stop relying on plausible-sounding tales which are mostly purpose-built to come out where you want them to. That way, people who know history in detail will not dismiss your advocacy as fairy tales.

            1. Unambiguously, the Founders tried to keep Congress from keeping a standing army. You can tell because it’s written into the Constitution. Keeping a navy was OK, but keeping an army requires constant Congressional approval.

            2. We had tyranny in 1861 and Jefferson Davis didn’t blow a shofar to get men with guns to come out of the woodwork…he organized an army with arms confiscated from federal forts and state militia stores and used funny money to buy arms from anyone dumb enough to accept funny money as payment.

              1. “We had tyranny”

                No, no we did not.

                1. Yes we did—unless you believe Jefferson Davis and RE Lee are liars??

                  1. Mr. Davis was perturbed that the climate in the Capitol was turning against the institution of slavery. So he instituted some actions that made it possible to completely abolish slavery. Had the Southern slave states not risen in rebellion, they could have held the lid on anything remotely like the 13A, 14A or 15A. But they chose to get their legislative representation picked by others, and the others’ picks went along with the 13A, 14A and 15A.

                    But no, no tyranny.

                    1. From Davis’ perspective it was tyranny…the Founders believed what they were engaging in would be considered treason if they lost the Revolutionary War—so from their perspective what they were fighting was “tyranny” irrespective of winning or losing. So the Civil War is relevant to the 2A because it shows how the political process broke down and then violence becomes a legitimate course of action once either politics or diplomacy or whatever fails. So the Framers understood violence was a legitimate course of action for people to take sometimes…and that is we have an amendment that protects tools designed to kill.

                    2. ” it shows how the political process broke down and then violence becomes a legitimate course of action”

                      They didn’t get what they wanted in Washington and turned to violence instead to try to get it. That’s not a legitimate course of action.

                    3. Davis and RE Lee believed it was a legitimate course of action.

  7. I am not going to opine on 2A

    though I will note that one of the major problems with precedent is how the language in the constitution gets morphed into meaning something else. The constitution uses the term “people” yet Heller uses the term “citizen” . Ever so slight change in term in Heller.

    Similar issue arose in Kelo – public use eventually morphed into “public benefit” through a series of 5a cases.

    similar issue highlighted in McDonald with the incorporation of the Bill or Rights – All rights are protected has morphed into fundemental rights in the BoR’s are protected, but non fundemental rights are not protected.

    1. The second and third words of the Constitution are “the People”, and there is no sensible way to interpret that usage as meaning “including aliens”.

      1. Exactly!

        Preamble: “We the people . . . .”

        2A: “. . . the right of the people . . . .”

        Same people.

        Citizens, probably, but Originalists would know better than I who would have elected those reps (including members of the state legislators) who ratified the Constitution and 2nd Amendment.

      2. In that sense, The People are the body of people from whom government authority arises, with their consent.

        This would not seem to include aliens, legal or otherwise.

        So legal ones would lose some of the 4th Amendment protections, being tied to the people?

        1. This would not seem to include aliens, legal or otherwise.

          But it did! Thousands and thousands of them. James Wilson, a champion for the notion of Popular sovereignty, a signer of both the Declaration of Independence, and the Constitution, was a Scotsman. You think he wasn’t included among “the body of people from whom government authority arises?”

          Arguments against foreigners as outsiders to America came far after the founding era. There is no legitimate originalist support for them.

          1. Recall that the early days of the Republic had a different approach to immigration. Back then, we welcomed almost everybody who could get on a boat and get here. Getting exclusionary came later.

            1. that was then, this is now

              1. So you’re saying things are different now, so we should stop being exclusionary?

      3. The fourth, fifth, sixth and seventh words are ‘…of the United States…” which just might not mean foreign invaders

      4. “there is no sensible way to interpret that usage as meaning “including aliens”.”

        Sure there is. An alien can be part of the ‘community of interests.’ There’s a long history of not excluding the vote based on citizenship in this country to provide empircal-historical support for this as well

        https://en.wikipedia.org/wiki/Right_of_foreigners_to_vote_in_the_United_States#Historical_data

        1. Uh, no. A childishly silly compilation that on its surface encompasses periods prior to the ratification, or even writing, of the Constitution. But if Wikipedia is your lodestar than I guess you might feel vindicated.

          1. Um, the constitution was written prior to its ratification. And the Philadelphia convention was assembled prior to its writing. Every term and concept in the constitution must be understood as it was before it was written and ratified!

    2. See my comment above—Heller asserts that the 2A was specifically drafted to protect the RKBA of individuals in federal territories and it didn’t apply to individuals in states prior to McDonald. So were the federal territories majority citizens or majority natives or majority foreigners?? So were the Framers attempting to protect the RKBA of Native Americans or the American citizens that settled territories or perhaps both groups of people??

      1. Not quite correct. More accurately, the Supreme Court did not formally determine that the 2nd Amdt had been incorporated by the 14th Amdt for the states. By necessity, they had to have been incorporated as of the enactment of the 14th Amdt – the Supreme Court just took over a century to say that that was the case. Note – they had never said that it wasn’t the case either. They just had not needed to answer that question until McDonald.

        I am not sure where you are going with your territory versus statehood distinction. Prior to statehood, the citizens of the territories were protected by the Bill of Rights (including the RKBA by the 2nd Amdt), and after statehood, after the enactment of the 14th Amdt, the 2nd Amdt was made applicable against the state governments too.

        1. Funny thing about the Bill of Rights… before the 14th amendment, they didn’t apply to states. So if one were in a state, and the state restricted something in the Bill o Rights, then those rights were restricted. But territories aren’t states. No loophole there.

          1. But you understand the federal government had Marshalls and courts and laws that operated in the states? That’s what is such a head scratcher about the 2A—as written it was limited to people in the federal territories and DC…such a head scratcher. 😉

            1. “But you understand the federal government had Marshalls”

              There was one running the Supreme Court. What other Marshalls did we have at the time? Are you counting Mrs. Marshall?

              1. Judiciary Act of 1789 created the lower branches AND US Attorneys AND Marshals signed on 9/24/1789. BoR introduced 9/25/1789. Any more questions???

                1. You didn’t answer the one from last time, so, no, no more questions.

                  1. I ignore dumb questions…do you have any more intelligent questions??

                    1. Why didn’t you answer the question? Too tough?

                    2. I have answered every intelligent question you posed…did I miss one??

              2. “branches” should be “lower courts”.

              3. Not Mrs. Marshall — Mr. Dillon!

                It’s a chancy job, and it makes a man watchful…and a little lonely.

                1. If Mr. Dillon was out pretending to be Mrs. Marshall, then he probably needed to be watchful… and a LOT lonely.

    3. “though I will note that one of the major problems with precedent is how the language in the constitution gets morphed into meaning something else. The constitution uses the term “people” yet Heller uses the term “citizen” . Ever so slight change in term in Heller.”

      Considering that as of the passing of the 2A, not all people were “people”. Women weren’t “people”, and people of African descent were REALLY not “people”… we might not want a real originalist analysis of the rights of the Bill of Rights.

      1. It was modiffied by the 14th Amendment.

        1. Indeed it was. Which is why 2A analysis and 14A analysis are so different.

        2. Right, prior to the 14A the 2A only operated in federal territories and DC…too bad Wyatt Earp didn’t get the memo. 😉

          1. No, prior to 14A, the 2A limited the federal government everywhere. The 2A didn’t (and does not) limit the state governments, who have their own constitutions. Many of which have their own protections for firearms possession.

            1. According to Heller the 2A was specifically drafted for individuals in federal territories and DC if one believes the 2A “codified a pre-existing right”. Why is that?? Because everyone on here agrees that the 2A only applied to the federal government prior to 14A.

              So Heller asserts that the 2A means that— the RKBA cannot be infringed because it is necessary to security of a free country. So the states infringed the 2A from the beginning so the states understood the 2A didn’t apply to them. So the Framers drafted the 2A specifically for the security of the federal territories and DC while the people in the states apparently didn’t live in free polities. So the 1A declares that “Congress shall make no law”…but the 2A was crafted as creating an individual right and not merely preventing Congress from infringing said right (although obviously it prevents Congress from infringing the RKBA)…but the states were still free to infringe that right prior to the 14A. Oh, and the federal government has infringed the RKBA fairly regularly so apparently the 2A didn’t prevent the federal government from infringing the RKBA. ????

              1. “if one believes the 2A “codified a pre-existing right”.”

                It did no such thing. The British overlords were very strict about keeping track of who had weapons, and where those weapons were kept. On the other hand, the powers of the federal government were supposed to be limited, and if those limited powers didn’t include power to act like the British overlords had acted prior to independence, then the new federal government wasn’t supposed to have that power.

                1. Lexington and Concord. Come on man.

                  1. Philadelphia and Charleston! Boston and Baltimore! London and Paris!

                    What, we aren’t just naming pairs of place names, now?

                    1. OK, fine. Lexington and Concord prove my point, not yours. The British were strict about what kind of weapons the citizenry could accumulate, so they went to Lexington and Concord to seize the armories located there. The people did NOT have a right to keep whatever weapons they wanted to have, not even “assault rifles”.

                    2. I believe “militia” in the 2A refers to the several state militias and so “Lexington and Concord” proves my point.

      2. Women weren’t “people”? Where do you get this? Is there some crazy liberal guidebook out there with all these insane “facts”? What am I saying? probably includes most public school textbooks today.

        1. In what century did women gain the right to vote in all federal elections? Hint: you can find the answer in a textbook.

      3. That is just not true. Women, and men of recent African descent, were certainly people, and thus congress lacked the power to prevent them from owning weapons. Nor did it ever occur to congress to do so. As far as I know nobody ever suggested that “people” as used in the constitution did not include women, and the first one to claim it did not include Africans was Justice Taney, decades after it was ratified.

        1. Taney was far from the first to claim that persons of African descent weren’t people, the original, un-amended text of the Constitution sets them as 60% people. Taney wrote down that they were actually closer to 0 tenths, though he was hardly the first to hold this opinion, not the last, alas.

          1. Taney was obviously no hero but he wasn’t a villain either. Basically he tried to prevent a civil war by perpetuating the status quo…it’s just the status quo was really evil and awful. He was a major Jacksonian and like most major Jacksonians he spent the late 1850s trying to keep America together. So most major Jacksonians left the Democratic Party because the Democratic Party was the party of secession and Jacksonians opposed secession. Jackson’s most important adviser was also one of Lincoln’s most important advisers—FP Blair.

          2. the original, un-amended text of the Constitution sets them as 60% people.

            No, it did not. And you know it very well, so that’s an outright lie.

  8. Does the fourth amendment (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….”) Apply only to Citizens? (I’d be OK if it did, btw). How about the first amendment (….or the right of the people peaceably to assemble…)?

    How can ‘people’ be understood to mean one thing in one amendment, and the opposite in another?

    1. Does the fourth amendment (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….”) Apply only to Citizens?

      No.

      1. Because the right was incorporated into the 14th amendment, with slightly different wording.

    2. Excellent point. It is not totally out of the question that the founding fathers could have intended the word “people” to have different meanings in different parts of the Bill of Rights (for example, this might be the case if the ratification debates showed such an intent) but it’s extremely unlikely. I’m not a big 2nd Amendment fan, but the idea that it applies only to citizens makes no sense to me.

      1. What law requires a vaccine?

        1. The part where not having a vaccine puts yourself (and everyone else near you) in danger.

          1. So what LAW?

            1. I am not aware that any federal or state authority has mandated a vaccine.

              Yet.

            2. “So what LAW?”

              Law of torts. Start with negligence.

              1. Plus the various school-attendance regulations. Some laws regarding pets, as well.

  9. And so how about the rest of the US Constitution?

    1. How about it?

  10. Since the Circuit decision relied on Heller and since Heller uses the term ‘Citizens’ it would seem that concept is what should be embodied in this decision. So there is really no issue here, and the concurrence is correct.

    Look away everone, nothing to see here.

  11. “Illegal aliens” pay taxes, work hard, and are less likely to be threats to public safety than citizens.

    They also serve in the armed forces. The first American soldier to die in Iraq was an “illegal alien”.

    1. “The first American soldier to die in Iraq was an ‘illegal alien’.”

      Presumably, if an illegal alien is shipped out of the United States by the Army, then that person is no longer an illegal alien, for the same reason all the people who stayed out of the United States in the first place aren’t illegal aliens.

      There’s a reasonable case that every American soldier who set foot in Iraq was an “illegal alien”…in Iraq. But that was Saddam’s problem, not ours. He should have built a big, beautiful wall to keep ’em out.

      1. Indeed.

        It’s rich to see keyboard warrior Brett compare illegal aliens to an “invading army”.

    2. Why are such a high percentage of illegal aliens guests of various penal systems, in considerable multiples of the percentage of illegals in the US?

      1. They’re poor. Poor people can’t afford the best lawyers.

        1. if they don’t break any laws they don’t need lawyers.

          1. Ignorant, self-assured bigots are among my favorite culture war casualties.

          2. “if they don’t break any laws they don’t need lawyers.”

            Donald Trump has a LOT of lawyers. Just an observation.

  12. The Second Amendment recognizes that people (not just citizens) have a right to bear arms, and Heller clarifies that citizens’ right to bear arms includes use of “arms in defense of hearth and home”, not just bearing arms as members of a militia. Then, it does not necessarily follow that non-citizens’ right to bear arms, recognized in the Second Amendment, does not also include use of “arms in defense of hearth and home”. For that, one would need to find specific reasoning in Heller as to why only citizens, but not non-citizens, would have reason to defend hearth and home, beyond bearing arms as part of a militia. Absent such reasoning in Heller, one would have to defer to the Second Amendment, which refers to people, not citizens. The Second Amendment recognizes people’s (both citizens’ and non-citizens’) right to bear arms. Heller clarifies the scope of such rights (defending hearth and home, not just as part of militias). Unless reasoning in Heller specifically differentiates between citizens and non-citizens in clarifying such scope, there is no reason to believe that non-citizens have any less interest in defending hearth and home than citizens.

    “Law-abiding” and “responsible” refers to the lawful, responsible use of arms to defend hearth and home. A citizen using arms in lawfully and responsibly defending hearth and home is a lawful, responsible citizen. One does not have a right to use or bear arms in an unlawful nor irresponsible manner. (We have a right to bear “commonly owned guns for lawful purposes”.) Hence, law-abiding and responsible citizens — meaning citizens lawfully and responsibly defending hearth and home — have a right to bear arms for such purposes but such right does not extend to citizens using arms unlawfully nor irresponsibly. To say that anyone who has ever broken a law — say by entering the country prior to completing one’s immigration paperwork, filing an incorrect tax form or missing a deadline, etc. — forfeits their right to self defense is non-sensical. If it’s a crime to murder or steal from an illegal immigrant or a citizen who missed a filing deadline, then how could such illegal immigrant or citizen not have a right to defend himself against such crimes?

    1. In theory, if Congress passes a law that is Constitutionally-suspect, they include the reasoning as to why it passes Constitutional muster, in the preamble to the statute. Of course, doing this does not guarantee that the statute does actually pass Constitutional muster, and lacking a preamble with Constitutional reasoning doesn’t necessarily imply that there is none. But if you’re looking for Constitutional reasoning, the statute itself is the best place to look for it.

    2. This is my take, as well.

      It’s been a while since I’ve carefully read Heller, but my understanding of that opinion is that the source of the individual right to bear arms stems from a common law right to self-defense that gets wrapped up into forming a “well-regulated militia.” If that’s the case, it’s hard to understand why we’re now to re-import a conception of the Second Amendment that instead places the interests of the “political community” first, in order to define its limits.

      In other words, if we’re to understand that the Second Amendment by its terms is only supposed to extend its protections to “law-abiding” “citizens,” because the Second Amendment is first and foremost about defining the rights of citizens within a political community, it’s not at all clear why we’re justified in reading out the “well-regulated militia” qualifier as essentially secondary. Why wouldn’t it follow that the Second Amendment’s protections are limited not only to “law-abiding citizens” but also specifically for the purpose of providing for a “well-regulated militia”?

      Do we have an individual right to bear arms, or not?

  13. Hang on, what? I don’t understand this argument.

    Heller held that there is an individual right to bear arms. Agree or disagree (I agree with that, though I’m not necessarily a fan of it, but that’s a story for another day). McDonald used the 14th amendment to extend that to the states. The relevant precedent here is McDonald.

    In all contexts we will be discussing this, we are talking about state regulation. So the relevant question is NOT “does the 2nd amendment apply to non-citizens” its “does the due process clause apply to non-citizens” which … we have a pretty good idea the answer is yes. Qualified, and I presume there is a bunch of case law here regarding the 1st, 4th, and 5th amendments, but I fail to see how the 2nd amendment is special.

    Now, I am curious why we implicitly assume the 2nd applies only to the federal government, after all, the first amendment says “Congress shall pass no law” (limiting its reach to Congress and the federal government) but the 2nd speaks of a right “of the people”, so where is the limitation? But that’s an aside, the way its been interpreted is parallel to all the other amendments.

    1. The outcome of Heller is correct AND responsible—we have a right to keep guns in the home for self defense. I also believe registering a gun that is going to be kept at home is an unconstitutional regulation and I will tell you why I believe that—I have known law abiding citizens from the South that have moved to NYC and DC and SF and they actually loved living in those cities but kept a gun in their apartments and never registered the gun because they thought those regulations were dumb. They never dared conceal carry because they knew they could get in serious trouble for that.

      Bottom line—because Heller is limited to the home look to see how right to privacy case law deals with non citizens.

    2. ” I am curious why we implicitly assume the 2nd applies only to the federal government”

      You answered your own question in your first paragraph. The Bill of Rights (amendments 1-8 and 10) apply against the federal government, in whose Constitution they appear. Then the 14A came along and implicity applied the rights of the BoR against the states. So, the question of whether the states can restrict the right to keep and bear arms lies not in the 2A, but in the 14A. Parsing the wording of the 2A to see how it applies to the states is a waste of time.

    3. “Heller held that there is an individual right to bear arms. ”

      OK. Not helpful.
      The question is under what conditions does this right not apply. For some absolutists, this right cannot be removed by anything. Others take a more realistic approach.

    4. Before the 14A, none of the amendments bound the states, because they were amendments to a constitution that by its own terms did not bind the states except where it specifically said it did. Had the 2A been intended to bind the states it would have said “…shall not be infringed by congress or by any state”.

  14. The second amendment doesn’t grant the right to keep and bear arms to people generally, it grants the right to “the people”. I think a reasonable reading of this phrase is that “the people” are citizens and others lawfully present, which at founding would have included native Americans with whom we were at peace, but not native Americans with whom we were not. Arming the hostile Injuns would have been a concern in the late 18th and early 19th centuries.

    1. What about reconstruction? This case is, imo, really about what the 14th amendment due process right means for “people” because that is what is actually getting applied to the states. Not about what Heller means. The 2nd amendment only applies to the federal government anyway at the founding. I don’t understand why people are putting such great weight on it.

      Native Americans are a special case because they are US citizens, yes, but they are also members of a separate sovereign. Like saying the 2nd amendment applies to Mexico is plainly ridiculous. Native Americans, in many areas of law, are viewed in a complicated hybrid between US citizens and citizens of a foreign country.

      But as an example, Dred Scott held black people weren’t citizens, and there is evidence that the due process clause was meant to extend all rights to them. Furthermore, the due process clause mentions people, and the privilege’s and immunities clause mentions citizens. Why would two separate words be used if Congress meant the same thing by them? Its clearly broader than that.

      1. At this point in history this is a right to privacy issue because the RKBA is limited to the home…so this issue makes the Supreme Court’s decision of how to proceed outside the home more difficult. I see the Supreme Court going with you have RKBA outside the home but it can be heavily regulated. States that go with Constitutional Carry will have to allow illegal immigrants to carry outside the home because they can’t enforce immigration laws because that’s the federal government’s domain. But I would think ICE could consider the fact an illegal immigrant is carrying a gun when considering deportation.

        1. “I would think ICE could consider the fact an illegal immigrant is carrying a gun when considering deportation.”

          A person who is deportable, is deportable. What are they considering? (You have to find that they are illegally present before you can tack on “armed while illegally present”)

          1. “Wet foot dry foot” was an executive order, and so is DACA and TPS…so the executive branch has wide leeway in deportation decisions.

            1. You’ve given two examples of the executive determining NOT to remove people as proof that the executive has power to remove at will.

          2. Aliens unlawfully in the country cannot legally purchase or possess a firearm, per BATF. Add that to unlawfully in country, which I suspect will out, given, ICE, sort of their wheelhouse.

            1. Same problem here. You have to prove that they’re in the country unlawfully before you can convict them of buying a gun while in the country unlawfully. Probably easier to convict the seller of unlawfully selling a firearm to a person not lawfully entitled to possess a firearm. No way the right would stand still for charging a gun dealer with a crime, just because they did a crime.

      2. “I don’t understand why people are putting such great weight on it.”

        The answer is that some people are afraid of having their warm, living hands pried off their firearms.

        “Native Americans are a special case because they are US citizens”

        They are NOW. They weren’t when any of the relevant amendments were drafted. Birthright citizenship was added to the 14A to cover the fact that all the freed slaves weren’t slaves any more thanks to the 13A but some state governments could be reliably expected to try to keep them (and their offspring) from having the rights of citizenship. Why, THEY might even try to VOTE! We obviously don’t want THAT. But birthright citizenship also extends to everyone born in the US, regardless of skin tone.

    2. I disagree because as of today the RKBA is limited to the home AND self defense and I believe regulations that require registering guns are unconstitutional. So under Heller everyone in America should have the right to self defense in their own home or criminals can target illegal immigrants because they know they won’t be armed.

      Furthermore states that go with “Constitutional Carry” would effectively allow illegal immigrants to carry guns outside the home but states that stick with permits would be able to prevent illegal immigrants from carrying outside the home. This is pretty simple—either you think guns are scary things or you think they make the world a better place. If you think they make the world a better place you shouldn’t have a problem with more guns out in public including armed illegal immigrants.

      1. Disagree. You can say fro Heller that the RTKBA applies to having guns in the home for personal protection. But you cannot say that it doesn’t protect the right to bear arms out of the home, for personal protection, or, indeed, for the purpose of protecting against an autocratic government. At best, you can say that they consciously decided not to decide those matters.

        Limiting the right to the doorstep (curtilage, etc) of your home is ludicrous – that would effectively limit our right to self defense to our homes, and leave us unprotected when we went to work, out shopping, etc. It would also defy history, since for the hundred and fifty years from when Europeans first came to this country, firearms were critical in defending from wild animals, Indians, etc, when leaving their homes. Arms were likely used far more often in self defense at that time outside people’s homes, than within them.

        1. Heller is a total joke because with my little 125 IQ pea brain I can easily pick it apart as made abundantly clear on this thread. The Supreme Court would have been better off incorporating Cruikshank or going with Stevens’ liberty interests analysis.

      2. “I disagree because as of today the RKBA is limited to the home AND self defense and I believe regulations that require registering guns are unconstitutional.”

        Is boat registration ALSO unconstitutional? One of the “privileges and immunities” of citizenship is to travel the navigable rivers of the United States.

        1. Make the case for boater registration being unconstitutional…I’ve already made the case that gun registration for guns strictly in the home is unconstitutional in multiple threads on multiple posts.

        2. Where in the Constitution does it say you have a right to boats – which were certainly known at the time of the founding?

          Likewise, cars and trains – which were not known.

          IIRC the USSC has established that while the people have a right to ‘travel’ in the US (via privacy) nobody has a right to drive, fly, or steer a boat.

          1. “Where in the Constitution does it say you have a right to boats – which were certainly known at the time of the founding?”

            In the tenth amendment.

  15. Were 18-21 year olds part of the political community? I mean, non-citizens were voting then in probably more places than 18 year olds…

    https://en.wikipedia.org/wiki/Right_of_foreigners_to_vote_in_the_United_States#Historical_data

    1. At the time of the founding, 18 year olds were considered adults, possibly land owners.

      1. Not the female ones.

        1. True, but we are better than that now.

          1. How about the ones who don’t have government-issued photo identification?

  16. With Roe v. Wade in the balance, it’s extremely unlikely that the Supreme Court is going to reconsider United States v. Verdugo-Urquidez defining the word “people” and indicating that those outside that definition do not have any of the rights the Constitution states as belonging to “the people.”

    A great deal of the Court’s legitimacy depends on principled, non-made-up-as-I-go-along definitions of these terms.

    Of course, if the 2nd Amendment right bears no connection to the 2nd Amendment’s text, perhaps this doesn’t matter.

  17. And a fundamental difficulty here is that the opinion are argues about a single phrase in a single decision, without going back to findamental principals basedx on the whole history of the court’s decisions.

    It would be like citing a Supreme Court decision extending First Amendent protection to movies, and then finding it doesn’t protect newspapers because, after all, newspapaers aren’t movies.

    1. Why are we “extending” first amendment protection to newspapers in your hypothetical. The first amendment expressly protects freedom of the press. We don’t need to “extend” it to cover freedom of the press. You might need to “extend” it to cover websites, which are not created by a press.

  18. If the right to self defense is a natural right like the right to speak freely then it belongs to all people not just citizens. The 2nd amendment codifies this right but should not limit it (i.e. citizens)

    1. The natural rights you have are exactly those that other people are willing and prepared to extend to you. To use an example concerning the right under discussion, your right to keep and bear arms does not mean you can walk down to the gun store, pick out the one(s) you like, and walk out without paying for them. The government can (and does) make theft of firearms a criminal act, without violating the 2A (or the 14A). You do not have a right to keep and bear someone else’s firearms, absent their permission.

  19. Aliens should be able to use their laser pistols. Bzzzzap!

    1. That would make a great movie—an American lawyer saves the world by taking the alien to court and arguing that God did not create the alien and so they are not endowed with human rights…and the 9th Circuit rules in the freaking alien’s favor because they suck…but the Supreme Court grants cert!! And then the Supreme Court saves the world by ruling the alien was not created by God and doesn’t have the RKBA and so the aliens leave the planet and the world is saved!! And the lawyer says “don’t let the space door hit your ass on the way out!”

      1. And then God manifests as a bush that burns but does not get consumed and asks “hey, what happened to those space people I sent here?” To which there is no answer before the space aliens start dropping rocks on us from space.

        1. Oops. Need to leave open the possibility to make a sequel.

  20. The Framers used the word “people,” and not the word “citizen.” Does this right apply only to U.S. citizens, or does it apply to all people in the United States?

    Or, does it apply specifically to the People, collectively, as the sovereign power of the United States? Forthright originalism would not exclude that possibility. If your framer of reference was Hamilton, a study of his writing in the Federalist and elsewhere would probably convince you that the term, “the people,” was indeed meant to signify, “We the People,” as the nation’s sovereign. Hamilton was prolific in his use of, “the people,” to signify the collective national sovereign. A broader study of the usages of other founders generally could probably improve greatly the confidence of today’s analysts about what that term should mean in originalist legal interpretation.

    As for the one such study heavily relied upon today, it was cursory and slapdash, at best. Scalia’s dismissal of that interpretation in Heller may for the present be legally dispositive, but it has never been historically accurate originalism. It would probably be worth some legal historian’s time to try to show whether Scalia was utterly ignorant of the standards for historical reasoning, merely held them in contempt, or was determined to cast them aside to get where he wanted to go.

    1. Summary of your interpretation: the federal government may not violate the federal government’s sovereign right to keep and bear arms.

      Sounds like nonsense but I’ll give you a chance: can you give an example of a federal law that would violate the 2nd under your interpretation?

      Otherwise, you are suggesting it has no effect whatsoever. Generally a lot of us disfavor interpreting parts of the Bill of Rights to just be pointless verbiage.

      1. The 2A was drafted to prevent what happened at Lexington and Concord. So a tyrant coming for a state militia arms store in order to perpetuate tyranny.

      2. Summary of your interpretation: the federal government may not violate the federal government’s sovereign right to keep and bear arms.

        Mistaken summary. It is impossible to understand 18th-century American constitutionalism while conflating sovereignty with government. Few if any of the founders ever made that mistake. The sovereign wields power greater than government’s, and without its constraints. Historical insight into the founding era would improve if more commenters kept in mind that in founding-era context, government was always ruled by a sovereign—two separate entities, the former ruled by the latter—with vastly different principles of activity.

        Even the Constitution does not rule the nation. The Constitution is the sovereign’s decree, to constitute government, and to limit it. The sovereign rules the nation, and the government. Government is constrained. The sovereign rules at pleasure, without constraint.

      3. “Summary of your interpretation: the federal government may not violate the federal government’s sovereign right to keep and bear arms.

        Sounds like nonsense but I’ll give you a chance: can you give an example of a federal law that would violate the 2nd under your interpretation?”

        A treaty of disarmament with a foreign power.

  21. Now you are giving me a textualist heartburn. First, the Supreme Court in Heller tells us that we can ignore half of the Second Amendment to understand the other half. Now the Second Circuit is telling us that term used in the Second Amendment, “people,” really means “citizen” because that is the word used in Heller.

    What text are we interpreting? Heller or the Second Amendment?

    1. Correction: The Second Circuit did not say “people” means “citizen”; a single concurring judge did.

  22. Shouldn’t Progressives be leaping to the aid of illegal aliens who are being denied the 2nd Amendment rights that citizens have?

    1. “Shouldn’t Progressives be leaping to the aid of illegal aliens who are being denied the 2nd Amendment rights that citizens have?”

      Turns out the only people who stand to make money selling firearms to illegals are people selling firearms, which group is short on progressives. So, probably, “no”

  23. Congressman Madison Cawthorn had his handgun confiscated at Asheville Airport in February. He said he had mistakenly put the unloaded Glock 9mm in his carry-on rather than his checked luggage. No charges were filed and he was allowed to retrieve his gun when he returned to the airport.

    1. A courtesy that would not be extended to the typical citizen

      1. Would not be . . . and should not be.

        1. There should not be any prohibition on carrying weapons on commercial flights. And the laws should be the same for Congressweasels as anyone else.

          1. The terrorists thank you in advance.

            1. The terrorists should be afraid of the people shooting them on airplanes.

              They are not. Why is that, do you think?

              1. Do you wonder how you came to reside at the alienated, receding fringe of American society and politics?

              2. “The terrorists should be afraid of the people shooting them on airplanes.
                They are not. Why is that, do you think?”

                They’re in a hurry to meet Allah. Are you so dense that you don’t understand that threatening to kill someone seeking martyrdom is not at all effective?

                If I really think that somebody else might be armed, and I’ve already decided that being bound by laws is not for me, then what I want to do is to shoot first, and accurately. Then, if it turns out he wasn’t armed, all it’s cost me is a bullet to make sure. And if it turns out the he WAS armed, well, then now I’ve got TWO guns. How does giving the terrorists extra guns help anybody who isn’t a terrorist?

  24. RE: “Does the Second Amendment Protect Non-Citizens?”

    I don’t think “protect” is the right word for what the Second Amendment does these days.

  25. I know this thread is about the meaning of the text. But as a policy choice, assuming you want a robust individual 2nd Amendment, it needs to apply to non-citizens. Otherwise you’ve left a big loophole that will be used to deny the right to citizens: for example (1) an officer claiming he “reasonably suspected” you weren’t a citizen, (2) a jurisdiction saying they need to verify citizenship and then taking 12 months to “research” your birth certificate, or (3) you and a non-citizen share a house and that’s used as a pretext for seizure or denying you a permit.

    For those of you up-thread fixated on the idea that undocumented immigrants are committing a crime, I think you need to keep in mind that not having a valid visa is generally a misdemeanor and (regardless of your opinion of what it should be) not a particularly serious one according to the law – many cases aren’t even prosecuted or detained. Do you really want a precedent that a non-violent misdemeanor cancels the 2nd Amendment? A determined LEO or even a permit inspector can *always* find a misdemeanor you have violated.

    IMO if you want an RKBA that’s not riddled with loopholes and pretexts, you want it to apply to any adult who hasn’t been specifically and individually deprived of the right through due process of law.

    1. Bingo. So one of the Black men killed by a cop in the last few years the pretext of the stop that led to the shooting was that the man had a marijuana joint near his gun in the car. So the joint wasn’t lit and in the photo I saw it honestly looked like a rolled tobacco cigarette…and the state it happened in was NC which is the most important tobacco state. So the stop was most likely illegitimate but unfortunately it still escalated to a man shot by a cop. So in light of what Texas is doing now and setting up pretexts to arrest illegal immigrants I too think that the illegal immigrants should be protected by the RKBA.

      1. An even better solution would be to require at least rational basis review of any law, to verify that the purpose and effect of the law fits within a grant of power actually given to the government. Instead of assuming the government can do it if it isn’t forbidden to do it, let them show that the government is actually allowed to do it, and if they can’t do that then they can’t make that law.

  26. “pretexts to arrest illegal immigrants”

    What pretext is required? They are here illegally, after all.

    1. police aren’t empowered to arrest anyone who is (or might be) breaking a law. They are empowered by the jurisdiction they represent to arrest people for violating the law of that jurisdiction. Federal agents can arrest for immigration violations, and state agents can arrest for violations of the state laws. Arizona tried an end-run around this by declaring that being present in the state while not being lawful to be present in the United States a crime against the state of Arizona. This got shot down. The goal of the change was of course to force the feds to divert enforcement resources from other states, and states don’ t get to tell the feds what to do.

  27. I am 100% FOR responsible people having the firearm of their choice, but my definition of “responsible” is not “currently has a pulse” the way it is for some firearms enthusiasts.

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