The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Eleventh Circuit held today in U.S. v. Jimenez-Shilon, in an opinion by Judge Kevin Newsom, joined by Judges Elizabeth Branch and Andrew Brasher; the opinion focused on Framing-era history, and concludes,
[Under eighteenth-century law,] aliens could not surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry. Nor can they do so today.
Other courts have likewise upheld the federal ban that was upheld in this opinion, but generally without such detailed historical analysis.
Judge Newsom also adds a separate concurrence, in which he questions the use of strict scrutiny, intermediate scrutiny, and similar tests both as to the Second Amendment and as to other constitutional rights, such as the First Amendment. Allowing constitutional rights to be overcome by compelling or substantial government interests, he argues, "elevates the normative views of 'we the judges' over 'We the People' through an ill-defined balancing test." And, turning to the First Amendment, he adds:
It's not just that the [First Amendment strict scrutiny / intermediate scrutiny] doctrine is exhausting—although it certainly is that. It's that the doctrine is judge-empowering and, I fear, freedom-diluting. If we, as judges, conclude—as I've said we should—that Second Amendment rights shouldn't be casually balanced away by reference to manipulable means-ends balancing tests, we might need to start asking the bigger question: On what basis can we do exactly that when dealing with other, equally fundamental rights?
Of course, this is just a quick summary of the results the opinion and the concurrence reaches; for more, see here.