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Second Amendment Doesn't Protect Illegal Aliens:

So concludes a Magistrate Judge in the Southern District of Florida, in U.S. v. Boffil-Rivera, recommending that the District Judge reject a constitutional challenge to a federal statute that criminalizes gun possession by illegal aliens. Seems like a pretty sensible result, but what's interesting is the reasoning:

That common law right [to keep and bear arms, secured by the Second Amendment,] was held only by citizens and those who swore allegiance to the Government; it did not include everyone present on American soil.... For instance, Samuel Adams and other delegates urged the Massachusetts ratifying convention to recommend barring Congress from "prevent[ing] the people of the United States, who are peaceable citizens, from keeping their own arms." The New Hampshire convention proposed that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." In these proposals, the pre-existing right clearly inured only to "peaceable" or lawful "Citizens." See also David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626--27 (2000) ("The average citizen whom the Founders wish to see armed was a man of republican virtue --- a man shaped by his myriad ties to his community, the most important for this purpose being the militia.").

Founding-era statutes confirm this limitation on the pre-existing common law right. During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States. To deal with the potential threat coming from armed citizens who remained loyal to Great Britain, states took the obvious precaution of disarming these persons. Thus, even within the confines of the pre-existing right to keep and bear arms, certain persons --- such as those who did not swear loyalty to this country --- were seen as falling outside the protection of that right, and laws or regulations that disarmed them were well-established at the time the Second Amendment was adopted. Indeed, several Founding-era state constitutions expressly provided that the right to bear arms extended only to "citizens." See, e.g., Pa. Cons. Stat. (1790); Ky. Const. (1792); Miss. Const. (1817); Conn. Const. (1818); Me. Const. (1819).

Along these same lines, Heller concluded that the reference to "the people" in the Second Amendment "unambiguously refers to all members of the political community, not an unspecified subset." Heller grouped this reference to "the people" with others found in the Bill of Rights, specifically the First, Fourth, and Ninth Amendments, as defined by an earlier Supreme Court decision, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In that decision, which related to the scope of the Fourth Amendment's application to the DEA's search of a foreign national that took place on foreign soil, Justice Rehnquist's majority opinion adopted the following definition of "the people":

"[T]he people" seems to have been a term of art employed in select parts of the Constitution .... [Its uses] sugges[t] that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

Verdugo-Urquidez is but one example of a series of cases that recognize that foreign nationals or "aliens" are not entitled to all the rights and privileges of American citizens. Justice Jackson's "ascending scale of rights" analysis is fully applicable today:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (emphasis added). As a result, lawful resident aliens who are present within the constitution's jurisdiction and have "developed substantial connections with this country" are entitled to minimal constitutional protections. The recognition of certain rights to resident aliens, however, does not mean that "all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; ...."

Neither foreign nationals who have not yet reached our shores, nor illegal aliens who have done so unlawfully and without the Attorney General's permission, are entitled to the full panoply of rights available to citizens or even resident aliens. To the contrary, that status by definition places such individuals outside the traditional protections of the Constitution ....

Clearly, under any historical interpretation of the enactment of the Second Amendment or the interpretation of any similar right under the Constitution, the individual right to bear arms defined by Heller does not apply to an illegal and unlawful alien. This Defendant, alleged by this Indictment to have been an unlawful alien, is not a citizen, is not ostensibly a person with identifiable and significant ties to the community, and is not someone who has any duty of allegiance to the United States. A person of his status could have been barred from possessing a firearm under English or Colonial American common law, and similarly could be precluded from doing so under the Second Amendment. His mere presence here does not entitle him to constitutional protection because he is clearly outside the scope of the "political community" who are conferred rights under the Second Amendment....

I'm inclined to be skeptical of arguments based on Revolutionary-War-era statutes — what a nation did in time of a war in which its existence is in very serious doubt doesn't tell us that much about what the general constitutional rules ought to be. But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.

More on the implications of this decision (and of the underlying question) in posts to come. Thanks to Robert Luck for the pointer.

Thomas_Holsinger:
I urge that you explain this to Justice Kennedy.
8.14.2008 1:21am
ReaderY:
I think the decision is correct even on less general grounds. Only the people would have loyalty to a militia, and illegal aliens would not ordinarily be part of one.

Perhaps the more fundamental questions involve various other provisions which refer to "the people", such as whether illegal aliens have a right to be secure in their homes, free from unreasonable searches and seizures.
8.14.2008 1:23am
Melancton Smith:
The right to life, liberty, and the pursuit of happiness are unalienable rights that apply to ALL people, granted by THEIR creator.

The right to defend one's life comes from this unalienable right. The Second Amendment restricts the government from infringing this unalienable right.

This right applies to all people regardless of their citizenship, otherwise it is not unalienable and is simply a right granted by our Constitution.

Weren't firearms siezed from loyalists paid for in some cases? I seem to recall that from one of Clayton's books.
8.14.2008 1:27am
David E. Young (mail) (www):
Firearms turned in by the loyalists were generally paid for.

The people disarmed during the Revolution, of coures, were generally not aliens. They were people who would not take an oath to use arms to defend the new governments that had been authorized by the people against the British. Most of the disarmed were loyalists, but a number were religiously scrupulous. All were disarmed and their arms used by those who would use the arms to defend the newly authorized governments.
8.14.2008 2:07am
A. Zarkov (mail):
"This right applies to all people regardless of their citizenship,..."

Even to members of an invading army? Suppose the people in invading army take off their uniforms, but keep their weapons. Are they now "people" protected by the 2A.
8.14.2008 4:05am
Melancton Smith:
A Zarkov wrote:

"This right applies to all people regardless of their citizenship,..."

Even to members of an invading army? Suppose the people in invading army take off their uniforms, but keep their weapons. Are they now "people" protected by the 2A.


It is a big step from "regardless of their citizenship" to "regardless of their status as an enemy combatant".
8.14.2008 9:58am
BlackX (mail):

But the view that "the people" wasn't understood as including illegal aliens seems to me quite plausible.


Was there even any concept of "illegal aliens" in the Revolutionary era? It strikes that there wasn't. Am I wrong?
8.14.2008 10:46am
Tracy Johnson (www):
So, are legal aliens allowed buy a firearm and hunt (or BYO)?
8.14.2008 10:58am
Mad Max:
Can non-citizens be denied other rights, e.g. free speech?
8.14.2008 11:15am
Dave N (mail):
Mad Max,

Depends on the right. Non-citizens are not allowed to vote nor serve on juries (yes, that is a right). They have most others.

Since even post-Heller some restrictions on firearms are warranted (prohibition on possession by felons and as to certain types), it seems that aliens could be prohibited from posessing firearms.
8.14.2008 11:36am
duxx (mail):
I fail to see the relevance of confiscations during the Revolution. These actions were chronologically before the ratification of the Bill of Rights. Further, Lincoln's suspension of Habeus Corpus (resulting in thousands of Marylanders languishing in prisons for the duration), and the lack of historical condemnation, renders such executive acts as precedent. These people were non-citizens if and only if you allow that their secession was a constitutional possibility. Perhaps the Secesh should have just "lawyered up", saving a half million lives.
8.14.2008 11:37am
Melancton Smith:
BlackX wrote:

Was there even any concept of "illegal aliens" in the Revolutionary era? It strikes that there wasn't. Am I wrong?


I was wondering the same thing. What kind of immigration policy was in effect when folks like Alexander Hamilton and Thomas Paine rode boats over? Didn't Paine arrive in 1774? Hamilton came over some few years before, if I recall correctly.
8.14.2008 12:12pm
therut:
I am a natural born citizen of the USA and the State of Arkansas. When I got my CCW I had to sign a oath to support the Governor and the Arkansas Constitution. And state that I would not bear arms aganist such. Interesting.
8.14.2008 12:17pm
Houston Lawyer:
I find the idea of rights for "illegal" aliens fascinating. From what I know, we have the absolute right to remove these people from our territory and that right is based solely upon the fact that they are not lawfully within this country. I believe that many of our laws make certain conduct unlawful only if you are otherwise engaging in other unlawful conduct or were previously convicted. Illegal aliens are, by definition, otherwise violating our laws. Couldn't they be treated like fugitives from justice?
8.14.2008 1:05pm
KeithK (mail):
Agreed Houston. It seems to me that illegal aliens are equivalent to felons for these purposes. If it's acceptable to exclude felons from firearm ownership then it should be for illegal aliens as well.
8.14.2008 2:01pm
Bruce Hayden (mail) (www):
It is a big step from "regardless of their citizenship" to "regardless of their status as an enemy combatant".
The Supreme Court made that jump quite easily with Gitmo.
8.14.2008 2:16pm
Dilan Esper (mail) (www):
I find the idea of rights for "illegal" aliens fascinating. From what I know, we have the absolute right to remove these people from our territory and that right is based solely upon the fact that they are not lawfully within this country. I believe that many of our laws make certain conduct unlawful only if you are otherwise engaging in other unlawful conduct or were previously convicted. Illegal aliens are, by definition, otherwise violating our laws. Couldn't they be treated like fugitives from justice?

1. Even fugitives have rights. For instance, if the governor of a state sent a posse after a fugitive with orders to beat the crap out of him during his seizure, I am pretty sure that would violate the 14th Amendment. There are fugitive forfeiture doctrines, but they are selective; a fugitive forfeits his right to appeal a conviction, for instance. But fugitives still have rights.

2. A lot of conservatives fundamentally misunderstand illegal immigration. What is illegal is not the person's status-- it is the person's act in either: (1) crossing into the United States without inspection or (2) overstaying a valid visa or entry permit. Even if the illegal immigrant later deports him- or herself, the person has still violated the law and is theoretically subject to legal sanction.

The point is, the law violation is not REMAINING in the US. It's the initial act of crossing the border or overstaying the visa. So all arguments that draw conclusions from the idea that for every moment in time the illegal immigrant is in this country, he or she is breaking the law fail.

3. It doesn't make sense to disentitle people to rights that have nothing to do with the violation. For instance, one could advocate stripping speeders and drunk drivers of all their constitutional rights. After all, speeders and drunk drivers endanger far more lives and do far more harm than illegal immigrants do.

But everyone would react to that by saying "of course not". Indeed, we don't even strip homicidal maniacs of constitutional rights unrelated to their offense.

So there must be something about illegal immigrants specifically that makes people want to advocate absolutely cruel and pointless measures that they would not advocate with respect to any other offender. I suspect I know what that something is, of course.
8.14.2008 2:50pm
KeithK (mail):

A lot of conservatives fundamentally misunderstand illegal immigration. What is illegal is not the person's status-- it is the person's act in either: (1) crossing into the United States without inspection or (2) overstaying a valid visa or entry permit. Even if the illegal immigrant later deports him- or herself, the person has still violated the law and is theoretically subject to legal sanction.


I understand this but it's not a very significant distinction. It may be true that an illegal who then leaves the country is still in violation of the law the US is not going to take further action against him. I suspect most of those opposed to illegal immigration would be satisfied with the person leaving the country as long as it wasn't immediately followed by another illegal entry.
8.14.2008 3:10pm
Dilan Esper (mail) (www):
Keith:

I don't think you are wrong about how conservatives feel about that. But I was responding to a line of argument that I see all the time that basically assumes that illegal immigrants can be treated in as inhumane a fashion as the government wishes to because every second they are on US territory, they are breaking the law. That is not, in fact, true. The law violation is the crossing of the border or the visa overstay (plus any additional violations for such things as using false documents while they are here). But there is no additional violation for simply staying here. The government, for instance, doesn't get to bring 365 counts against an illegal immigrant just because he stayed here for a year after entering.

And as result, arguments that are premised on an illegal immigrant being in continuous violation of the law are wrong.
8.14.2008 3:36pm
Houston Lawyer:
Treating illegals like fugitives from justice doesn't mean that we can execute them or torture them, just that we don't need probable cause on any other offense to throw them out of the country. If we break into a house and find an illegal there, we don't have to let him go because we didn't have a search warrant.

He shouldn't have any more rights than a felon who has done his time. If he overstayed his visa yesterday, what difference does that make since he has overstayed his visa today as well. I believe that one of the reasons the immigration reform bills proposed recently ignited so much response was a provision therein making illegal entry or overstaying your visa a felony.
8.14.2008 4:07pm
Melancton Smith:
Dilan Esper wrote:

So there must be something about illegal immigrants specifically that makes people want to advocate absolutely cruel and pointless measures that they would not advocate with respect to any other offender. I suspect I know what that something is, of course.


I'm not sure what cruel and pointless measures you think people are advocating. What is the difference from expelling an uninvited visitor from your house and expelling such from your country? I think perhaps you project.

Or is the "Esper" in your name really "ESP-er"? Meaning, you read minds?
8.14.2008 4:14pm
Mad Max:
The point is, the law violation is not REMAINING in the US. It's the initial act of crossing the border or overstaying the visa. So all arguments that draw conclusions from the idea that for every moment in time the illegal immigrant is in this country, he or she is breaking the law fail.

So if I rob a bank today, I am not still guilty of that tomorrow? I am not "continuously" in violation of the law against robbing banks for every hour of every day after I leave the bank?
8.14.2008 4:29pm
Dilan Esper (mail) (www):
So if I rob a bank today, I am not still guilty of that tomorrow? I am not "continuously" in violation of the law against robbing banks for every hour of every day after I leave the bank?

Nope, Max, you aren't. You are simply guilty of the original offense, which was completed when you left the bank in the getaway car. There may be additional separate offenses committed after that time, but that's different.
8.14.2008 4:40pm
Dilan Esper (mail) (www):
I'm not sure what cruel and pointless measures you think people are advocating. What is the difference from expelling an uninvited visitor from your house and expelling such from your country? I think perhaps you project. Or is the "Esper" in your name really "ESP-er"? Meaning, you read minds?

I don't dispute that the government has the power to deport illegal immigrants.

The cruel and pointless measures I am talking about are everything from making it impossible to get a bank account or a driver's license to shooting unarmed illegal immigrants at the border.

And I reject the point, also made by Professor Volokh, that accusing the anti-illegal immigrant chorus of bad motives is a form of ESP. It isn't. If you compare the way people call for the most drastic actions towards illegal immigrants versus what they call for with respect to more dangerous actions by other offenders, you can see a grave disparity. And when you listen to people, these discussions stray from discussions of illegality to whether people speak too much Spanish or are "changing the culture". This is driven by ethnic animus, and you don't need ESP to see it.
8.14.2008 4:43pm
Eugene Volokh (www):
Dilan Esper: I'm sure that there are some people who take certain views on illegal immigration because they are racists. Likewise, I'm sure that there are some people who support all sorts of laws for all sorts of bad motives. The question is how you can generalize from those people to other people -- especially since it's quite sensible for people with a general law-and-order orientation to be in favor of various sanctions for conduct that is after all illegal.

To return to the original topic that started this thread, do you think Bolivian-born Magistrate Judge Edwin Torres is anti-Hispanic? If not, and if he takes the view he does because he has some non-bigoted arguments for it, could it be that some other people who think illegal aliens aren't covered by certain rights likewise have non-bigoted reasons for their views?
8.14.2008 5:25pm
Dilan Esper (mail) (www):
Dilan Esper: I'm sure that there are some people who take certain views on illegal immigration because they are racists. Likewise, I'm sure that there are some people who support all sorts of laws for all sorts of bad motives. The question is how you can generalize from those people to other people -- especially since it's quite sensible for people with a general law-and-order orientation to be in favor of various sanctions for conduct that is after all illegal. To return to the original topic that started this thread, do you think Bolivian-born Magistrate Judge Edwin Torres is anti-Hispanic? If not, and if he takes the view he does because he has some non-bigoted arguments for it, could it be that some other people who think illegal aliens aren't covered by certain rights likewise have non-bigoted reasons for their views?

1. It is no insulation from a charge of racism that someone, somewhere, of the particular minority being oppressed (and bear in mind, Bolivia (and especially certain sectors of Bolivia) is not Mexico by any means) takes the same position.

2. I don't think that the "general law and order position" is taken by the people who come down so hard on illegal immigrants. Speeders not only kill people, but their misconduct is directly tied to driving a car. Yet I never hear calls to strip driver's licenses from speeders, only illegal immigrants.

3. I am not making the claim that everyone who ever opposed illegal immigration is a racist. However, I do think that the generalization that I do make is quite valid. Debates about illegal immigration, and how they leech into discussions about Spanish-speakers and about changes in the culture, have convinced me that consciously or unconsciously, this is the big motivator for many people. Very few people in fact take consistent positions that would reflect a general law-and-order attitude, and many people express the type of sentiments that show that there's a lot more going on under the hood than some generalized complaint about lawbreaking.
8.14.2008 6:39pm
Avatar (mail):
Uh, you don't hear calls to strip drivers' licenses from speeders because we already do that, right? You get so many infractions in a time period, your license gets revoked...
8.14.2008 6:59pm
Eugene Volokh (www):
Dilan Esper: Well, it's no insulation from a charge of racism, but it does cast a bit of doubt on it -- especially when the evidence for the initial charge is as thin as yours.

As to the "general law and order position," I mention it partly because Paul Cassell is well-known -- as you acknowledged -- for taking on balance a "law-and-order" line to constitutional questions more broadly (recognizing that the term is a pretty big oversimplification).

As to driver's licenses, I take it the premise is that someone who isn't even licensed to be in America in the first instance shouldn't be licensed to drive on American highways, either. That may not be a sound approach on balance -- but it's a pretty plausible argument, it seems to me, and one that eminently unbigoted people can accept.

So I think we're talking here mostly about your own prejudices and your own bigotry against people who take a different view than you do and not Paul Cassell's or Judge Torres' bigotry.
8.14.2008 6:59pm
Nomennovum:
Do illegal aliens have Second Amendment rights?

Look, I'm no lawyer, but this is a really easy question to answer. Leave it to lawyers to complicate things. I mean, I don't have to read all of your analysis to answer this question. Jeez louise, where is your common sense or your grammar school knowledge of biology?

Aliens -- whether here legally or illegally -- have NO Constitutional rights ... because they're ALIENS fer cryin' out loud. They're not human. They're FROM SPACE.

QED
8.14.2008 7:27pm
Perseus (mail):
The point is, the law violation is not REMAINING in the US. It's the initial act of crossing the border or overstaying the visa. So all arguments that draw conclusions from the idea that for every moment in time the illegal immigrant is in this country, he or she is breaking the law fail.

The cruel and pointless measures I am talking about are everything from making it impossible to get a bank account or a driver's license to shooting unarmed illegal immigrants at the border.


But each and every time a person drives on a public road without a driver's license is committing a discrete illegal act. So while it is correct to say that illegal aliens are not continuously violating immigration law every day that they are here, most are likely committing a series of discrete illegal acts during the course of a year that are the result of the initial act of violating immigration law.
8.14.2008 7:36pm
Mack Rogue (mail):
"This right applies to all people regardless of their citizenship, otherwise it is not unalienable and is simply a right granted by our Constitution."

Yes, the right is recognized to belong to all regardless of citizenship but the goverment is enjoined from infringing on that right only in regards to citizens.
Any American government may make laws infringing upon this unalienable right but these laws are only constitutional when applied against non-citizens.
2nd Amendment protection extends to citizens only.
8.14.2008 9:24pm
Melancton SmithM:
So because we don't turn a blind eye to illegal aliens and give them driver's licenses and stuff instead of deporting them we are bigoted...

I see.
8.15.2008 12:53am
Mad Max:
Nope, Max, you aren't. You are simply guilty of the original offense, which was completed when you left the bank in the getaway car. There may be additional separate offenses committed after that time, but that's different.

Well, that's interesting. In my view, a bank robber is most certainly continuously a criminal from the moment he raises his pistol in the bank until the moment he is done serving time for the offense. I guess under your theory, there is no more point in trying to catch bank robbers unless they are actually in the bank committing the offense than there is in trying to catch illegal aliens unless they are actually hopping the fence at the time?
8.15.2008 10:08am
Joe Schmoe (mail):

Since even post-Heller some restrictions on firearms are warranted (prohibition on possession by felons and as to certain types), it seems that aliens could be prohibited from posessing firearms.


Ah, but many "felons" have committed no act which warrants the loss of the right to bear arms. Indeed, both state and federal laws are making felons by the stroke of a pen. These are not crimes of nature, but crimes of public policy and politics. There are thousands of political prisoners in these United States. Should they lose their right to bear arms, when the reason the founders were so keen on it was so that we could protect ourselves from our government?

You'll have to find another comparison, because frankly, as long as we have government that can criminalize any behavior, and stifle dissenters, this one doesn't hold.
8.16.2008 10:32am
Paul W. Davis (mail) (www):
You folks are out there somewhere. The issue of Constitutional protection (which is what the 2A is, a Constitutional protection) must necessarily arise from the parties to that Constitution. One cannot enjoy constitutional protection unless one is a party to that constitution. Individually, citizens of the several states are parties to the Federal Constitution by proxy, or agent. We are, individually, directly a party to the state constitution, of only the state to which we are respective citizens, and no other. The several states formed the Federal Constitution as agents of the people. Hence, to protect the rights of individuals, which the several states represented (being collectively a single political and social body - a state), the states, which are direct parties to the contract, determined that certain protections of individual, pre-existing natural rights were necessary to prevent encroachment by a government once-removed from the people, meaning expressly, the citizens of the several states. Our constitutions, state and federal, were never meant to protect those who are not parties to them and may be, in fact, hostile to this particular philosophy of social and political order.
8.16.2008 6:38pm
Ryan (mail):
Paul, you are in sad and serious error. The Constitution is not a definition of who is a citizen and an enumeration of privileges extended to those citizens. It is an enumeration of powers granted to the federal government, which does not exist outside the Constitution except through illegitimate exercise of power. The Constitution does not exist to protect citizens. It exists to establish and confine the federal government.

Now, given your newfound knowledge, point out the power in Article I, Section 8 that gives the federal government power to regulate or prohibit firearms. I will even assume that you don't believe in the individual right to bear arms. That right, for the sake of this argument, is irrelevant; if the enumerated power to seize or regulate firearms is not there, then the federal government cannot do it, right or no right.
8.18.2008 1:01am